O. A. v. J. A. ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
O. A. v. J. A.*
(SC 20590)
D’Auria, Mullins, Kahn, Ecker and Keller, Js.
Syllabus
The plaintiff sought to dissolve her marriage to the defendant. Thereafter,
the defendant filed a cross complaint in which he sought enforcement
of a postnuptial agreement that the parties had executed, which set
forth terms for the distribution of property and for determining support
awards in the event of the dissolution of the parties’ marriage. The
plaintiff subsequently filed motions for pendente lite alimony, attorney’s
fees, and expert fees. The trial court, relying on this court’s decision in
Fitzgerald v. Fitzgerald (169 Conn. 147), concluded that it was not
required to determine, prior to deciding the plaintiff’s motions, whether
the parties’ postnuptial agreement was enforceable and deferred its
decision on that issue until the end of trial. The court, after considering
each party’s financial resources and the fact that the plaintiff was com-
pletely reliant on the defendant for financial support during the marriage,
ordered the defendant to pay the plaintiff pendente lite alimony, attor-
ney’s fees, and expert fees. The defendant appealed from the trial court’s
orders, claiming that the trial court incorrectly had determined that it
did not need to consider the enforceability of the parties’ postnuptial
agreement prior to awarding the plaintiff pendente lite alimony and
litigation expenses. Held that the trial court properly relied on Fitzgerald
and acted within its discretion in deferring its decision on the enforce-
ability of the parties’ postnuptial agreement until the end of trial, and,
accordingly, this court affirmed the trial court’s orders: the trial court’s
broad equitable powers and discretion in deciding matters arising in a
dissolution action include the discretion to defer a decision on the
enforceability of a marital agreement until the parties have had a full
and fair opportunity to litigate all issues in the case at a trial on the
merits; moreover, contrary to the defendant’s contention that Fitzgerald
was distinguishable from the present case because it involved a separa-
tion agreement rather that a postnuptial agreement, the underlying prin-
ciple in Fitzgerald, that the validity of a marital agreement may be
assessed when the case is tried on its merits, applies equally to all
marital agreements, including prenuptial, postnuptial and separation
agreements, and there was no merit to the defendant’s assertion that
this court had indicated in Bedrick v. Bedrick (300 Conn. 691) that
reliance on Fitzgerald in the context of postnuptial agreements is mis-
placed; furthermore, although this court was not unsympathetic to the
defendant’s argument that the holding in this case could work an injus-
tice because the plaintiff would not have the means to make the defen-
dant whole if the trial court ultimately determined, after a trial, that the
parties’ postnuptial agreement is enforceable and that it precludes an
award of pendente lite alimony and litigation expenses, the defendant
was not without a remedy in such circumstances, as the trial court could
ultimately adjust any final financial orders to compensate the defendant
for pendente lite payments that previously had been made in contraven-
tion of the agreement.
Argued September 17, 2021—officially released January 27, 2022**
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 court, McLaughlin, J.,
issued certain orders awarding the plaintiff pendente
lite alimony, attorney’s fees, and expert fees, from
which the defendant appealed. Affirmed.
James P. Sexton, with whom were Thomas D. Colin,
Julia K. Conlin and, on the brief, Emily Graner Sexton,
for the appellant (defendant).
Kenneth J. Bartschi, with whom was Karen L. Dowd,
for the appellee (plaintiff).
Opinion
KELLER, J. In this interlocutory appeal,1 we must
decide whether a spouse seeking pendente lite alimony,
attorney’s fees, and expert fees during the pendency of a
dissolution action must demonstrate that a postnuptial
agreement that purportedly precludes such payments
is invalid or otherwise unenforceable before the trial
court properly may order the other spouse to make any
such payments.
Shortly after their marriage in 2013, the plaintiff, O. A.,
and the defendant, J. A., executed a postnuptial agree-
ment setting forth terms for the distribution of property
and determining support awards in the event of the
dissolution of their marriage. In 2019, the plaintiff
brought this action, seeking, inter alia, dissolution of
the marriage and temporary and permanent alimony.
The defendant filed a cross complaint in which he
sought, inter alia, enforcement of the parties’ postnup-
tial agreement. Thereafter, the plaintiff filed motions
for pendente lite attorney’s fees, alimony, and expert
fees. After an evidentiary hearing, the trial court granted
in part the plaintiff’s motions and ordered the defendant
to pay the plaintiff (1) temporary alimony in the amount
of $20,000 per month, (2) $114,019.99 in current attor-
ney’s fees and a retainer for legal counsel in the amount
of $250,000, and (3) a contribution toward specified
future expert fees in the amount of $25,000. On appeal,
the defendant claims that the trial court incorrectly
determined that it need not determine the enforceability
of the parties’ postnuptial agreement before awarding
the plaintiff pendente lite alimony, attorney’s fees, and
expert fees (hereinafter alimony and litigation expenses),
which the defendant contends the plaintiff is not enti-
tled to under the agreement. We disagree and, accord-
ingly, affirm the judgment of the trial court.
The following facts, which were either found by the
trial court or are otherwise undisputed, are relevant
to our resolution of this appeal. The plaintiff and the
defendant married in Greenwich on September 29, 2013.
At the time of marriage, the plaintiff was approximately
twenty-eight years old, had no children, and had an
approximate net worth of $275,400, and the defendant
was forty-five years old, had one daughter from a previ-
ous marriage, and had an approximate net worth of $32
million.
Nearly four months after their marriage, on January
17, 2014, the parties entered into a postnuptial agree-
ment in hopes that it would ‘‘settle questions with
respect to certain marital rights and property to prevent
strife and to enhance the prospects for marital harmony
. . . .’’ Both parties were represented by separate and
independent counsel and made financial disclosures to
the other prior to executing the agreement. Pursuant
to the agreement, the parties waived any legal right that
they might otherwise have to the property of the other
in the event of a ‘‘[t]ermination [e]vent,’’ which is
defined to include the filing of a dissolution action. The
agreement further provides that, should a termination
event occur, the parties will have restored to them the
value of the individual property2 that each party brought
into the marriage plus the monetary value of any
bequest, trust interest, inheritance, gift, insurance bene-
fits, or the like that either party received during the
marriage. The defendant also agreed to assume full
financial responsibility for any child born to the mar-
riage or adopted by the parties prior to the termina-
tion event.
With respect to marital property,3 the agreement pro-
vides that it ‘‘shall be distributed to the parties in the
same proportion to the value of their respective [i]ndi-
vidual [p]roperty (each party’s asset value on the [d]ate
of [m]arriage plus the monetary value at the date of
transfer of any subsequent gifts or inheritance received
by either party during marriage and prior to a [t]ermina-
tion [e]vent).’’ With respect to spousal support, the
agreement provides that the defendant waives any claim
to receive alimony from the plaintiff but agrees to pay
the plaintiff alimony, the amount of which is to be
determined pursuant to a complex formula that takes
into account various factors, including, but not limited
to (1) the length of the parties’ marriage, (2) whether
they conceived children who were born alive, and (3)
the amount of individual property returned to the defen-
dant.
Of particular relevance here, the agreement provides
that, if a termination event occurs between the fifth
and eighth anniversaries of the date of the parties’ mar-
riage, a child was conceived prior to the termination
event and later born alive, the plaintiff receives ‘‘an
aggregate of [m]arital [p]roperty and alimony equaling
less than $500,000,’’ and ‘‘the value of [the defendant’s]
[i]ndividual [p]roperty restored to him by the court upon
the termination of the marriage is in excess of $10,000,000,
then . . . [the defendant] will be obligated to pay a
minimum of $100,000 of alimony annually to [the plain-
tiff] until she receives gifts or inheritances having an
aggregate value greater than $10,000,000, taking the
value of each such gift or inheritance on the date of
transfer, whether prior to or after the [t]ermination
[e]vent.’’
The agreement does not expressly address the issue
of pendente lite alimony. It defines the term ‘‘alimony’’
as ‘‘the dollar amount of the alimony award made by the
court upon the formal termination of the marriage’’;
(emphasis added); a definition that would not clearly
and unambiguously include an award of pendente lite
alimony, which is made during the pendency of the
dissolution action, prior to the formal termination of
the marriage. See, e.g., Connolly v. Connolly, 191 Conn.
468, 480, 464 A.2d 837 (1983) (‘‘[p]endente lite orders
necessarily cease to exist once a final judgment in the
dispute has been rendered because their purpose is
extinguished at that time’’). The agreement also does
not discuss attorney’s fees or expert fees, except to
state that, if a party unsuccessfully challenges the agree-
ment or breaches it, then he or she will be responsible
for the other party’s attorney’s fees.
After the execution of the postnuptial agreement, the
parties began what the trial court described as a ‘‘fairly
affluent’’ and ‘‘bicoastal’’ lifestyle, with family homes
in Greenwich and Malibu, California. They later had
two children—a girl, born in 2015, and a boy, born in
2017. During the marriage, the defendant was the
sole financial provider for the family, and the plaintiff
relied on him entirely for financial support. The defen-
dant, who is self-employed, is involved in a number
ofbusiness ventures. Specifically, ‘‘[h]e manages his
own money through an investment [management firm]
. . . . He [also] works with the plaintiff’s brother on
three real estate projects in Los Angeles, [California]
. . . [and] founded a not-for-profit solar company
. . . . Finally, the defendant serves on two boards of
directors for life science companies . . . .’’ Despite the
defendant’s numerous business ventures, however, he
testified that the parties had, and continue to have,
significant ‘‘ ‘cash flow’ ’’ issues due to the illiquidity of
the defendant’s assets.
These ‘‘ ‘cash flow’ ’’ problems, as well as the plain-
tiff’s mental health challenges, are two of the factors
that precipitated the decline of the parties’ marriage.
Additionally, on a family trip to Colorado in December,
2018, the plaintiff and the defendant’s then teenage
daughter were involved in a physical altercation. Subse-
quently, in April, 2019, the plaintiff and the defendant
were involved in a physical altercation, after which the
police were called and the plaintiff was arrested.4
In July, 2019, the plaintiff admitted herself into Silver
Hill Hospital in New Canaan. The plaintiff testified that
‘‘she went to Silver Hill Hospital because she realized
[that] she needed help after having gone through several
difficult situations, including, in November, 2018, losing
an election for public office in Malibu [California],
shortly thereafter, having her home destroyed [by fire],
then, the December, 2018 altercation with her step-
daughter, and, finally, in 2019 . . . a miscarriage.’’ The
plaintiff spent thirty days at Silver Hill Hospital and
received treatment for a mild cannabis disorder and for
managing her emotions.
The plaintiff was discharged from Silver Hill Hospital
on August 21, 2019, and commenced this dissolution
action two days later. On August 21, the defendant
sought and was granted an ex parte restraining order
against the plaintiff, barring her from the marital home
and from contacting the defendant, his daughter, and
the parties’ children. On September 20, 2019, the defen-
dant filed an answer and a cross complaint, seeking,
inter alia, enforcement of the parties’ postnuptial agree-
ment. The plaintiff thereafter filed separate motions for
pendente lite attorney’s fees, temporary alimony, and
expert fees.5 In her reply to the defendant’s cross com-
plaint, the plaintiff sought avoidance of the parties’ post-
nuptial agreement on a number of grounds, including
that the agreement was signed by her under duress, that
the defendant did not provide full, fair and reasonable
financial disclosure prior to its execution, and that it
would be unconscionable to enforce it in light of present
circumstances. In response, the defendant filed a motion
to bifurcate the trial, arguing that the trial court should
first determine the enforceability of the parties’ post-
nuptial agreement before awarding the plaintiff pen-
dente lite alimony and litigation expenses to which she
may not be entitled.
The trial court conducted an evidentiary hearing on
the parties’ motions, after which it issued orders regard-
ing, inter alia, the postnuptial agreement and the pen-
dente lite alimony and litigation expenses. Relying on
this court’s decision in Fitzgerald v. Fitzgerald, 169
Conn. 147, 362 A.2d 889 (1975), the trial court con-
cluded, contrary to the defendant’s assertion, that it
was not required to determine, prior to deciding the
motions, whether the postnuptial agreement was
enforceable and, if so, whether it precluded an award
of pendente lite alimony and litigation expenses. The
court further explained that ‘‘[t]o preclude pendente
lite support in a matter like this, where one party has
no income and, during the course of the marriage, was
completely reliant on the other for financial support,
would work a great injustice by allowing one side to
have access to unlimited resources while the other party
[is] left to rely on the financial resources and kindness
of family and friends. This is contrary to the basic pur-
pose of temporary support [which is] to provide finan-
cial support to a spouse in need of [such support] until
the entry of a final dissolution [judgment].’’ The court
then found, on the basis of ‘‘all the credible evidence,’’
that the defendant has an imputed net income or earn-
ings in the amount of $900,000 annually or $75,000 per
month. The court therefore determined that the defen-
dant was ‘‘able to provide the plaintiff with the financial
support she needs’’ and awarded the plaintiff temporary
alimony in the amount of $20,000 per month, retroactive
to October 31, 2019, the date on which she filed her
motion for pendente lite alimony.6
With respect to the pendente lite attorney’s fees and
expert fees, the court similarly concluded that, due to
the financial disparity between the parties, an award of
such fees was proper notwithstanding the defendant’s
assertion that the requested amount was unreasonable
in light of the parties’ postnuptial agreement, which, in
the defendant’s view, would preclude such an award if
the agreement were found to be enforceable. In reach-
ing its determination, the court observed: ‘‘The nature
of the defendant’s occupation and assets is compli-
cated. At this juncture, it seems likely that valuing his
assets will require considerable discovery and expert
assistance. Further, this case has the added issues
involving the [temporary restraining order]. Based on
the pertinent evidence, statutory criteria, and the par-
ties’ financial affidavits, the court orders the defendant
to pay the plaintiff $114,019.99, the current amount
owed to her attorneys, and a $250,000 retainer as contri-
butions toward her attorney’s fees.’’ The court further
ordered the defendant to pay the plaintiff expert fees
in the amount of $25,000.
On appeal, the defendant claims that the trial court
incorrectly determined that it need not consider the
enforceability of the parties’ postnuptial agreement
prior to awarding the plaintiff pendente lite alimony
and litigation expenses. Specifically, the defendant
argues that this court ‘‘should . . . hold that a nuptial
agreement is presumed to be valid and enforceable
until the party challenging it successfully demonstrates
otherwise’’ and that no pendente lite alimony or litiga-
tion expenses may be awarded until such a demonstra-
tion is made. The plaintiff responds that the trial court’s
decision to award pendente lite alimony and litigation
expenses pending final disposition of the dissolution
action comports with this court’s decision in Fitzgerald
and this state’s public policy.7 We agree with the plain-
tiff.
Whether the trial court properly deferred its decision
on the enforceability of the parties’ postnuptial agree-
ment until the end of trial presents a question of law
over which our review is plenary. See, e.g., Bedrick v.
Bedrick, 300 Conn. 691, 697, 17 A.3d 17 (2011); see also
Fish v. Fish, 285 Conn. 24, 37, 939 A.2d 1040 (2008)
(‘‘[t]he trial court’s determination of the proper legal
standard in any given case is a question of law subject
to our plenary review’’).
Although it is well established that ‘‘[t]he state does
not favor divorces . . . [and] [i]ts policy is to maintain
the family relation as a life[long] status’’; (citation omit-
ted) McCarthy v. Santangelo, 137 Conn. 410, 412, 78
A.2d 240 (1951); this court has long held that prospec-
tive spouses may contract with one another regarding
certain issues that may arise in the event of the dissolu-
tion of their marriage, so long as the agreement com-
plies with ordinary principles of contract law and does
not violate the law or public policy.8 See, e.g., Crews
v. Crews, 295 Conn. 153, 159–60, 989 A.2d 1060 (2010);
McHugh v. McHugh, 181 Conn. 482, 485–86, 436 A.2d
8 (1980). We previously have explained that prenuptial
agreements violate public policy if, for example, they
promote, facilitate, or provide an incentive for divorce,
or if the agreement or a provision thereof purports to
relieve a prospective spouse of the obligation to support
his or her children or the obligation to support his or
her spouse throughout the duration of the marriage.
See McHugh v. McHugh, supra, 488–89.
More recently, in Bedrick v. Bedrick, supra, 300 Conn.
691, this court held that postnuptial agreements, like
prenuptial agreements, do not violate public policy but,
instead, ‘‘realistically acknowledge the high incidence
of divorce and its effect [on] our population.’’ Id., 698;
see also id., 699 (‘‘[w]ith divorce as likely an outcome
of marriage as permanence, we see no logical or com-
pelling reason why public policy should not allow two
mature adults to handle their own financial affairs’’
(internal quotation marks omitted)). At the same time,
we also recognized that ‘‘spouses [executing a postnup-
tial agreement] do not contract under the same condi-
tions as either prospective spouses [executing a prenup-
tial agreement] or spouses who have determined to
dissolve their marriage [executing a separation agree-
ment]’’; id., 701; and, therefore, that postnuptial agree-
ments require stricter scrutiny in their assessment than
do prenuptial agreements. Id., 703. Specifically, we held
that ‘‘a court may enforce a postnuptial agreement only
if it complies with applicable contract principles, and
the terms of the agreement are both fair and equitable
at the time of execution and not unconscionable at the
time of dissolution’’; (footnote omitted) id., 703–704;
and that ‘‘the terms of a postnuptial agreement are fair
and equitable at the time of execution if the agreement
is made voluntarily, and without any undue influence,
fraud, coercion, duress or similar defect. Moreover,
each spouse must be given full, fair and reasonable
disclosure of the amount, character and value of prop-
erty, both jointly and separately held, and all of the
financial obligations and income of the other spouse.’’
Id, 704. ‘‘[I]n determining whether a particular postnup-
tial agreement is fair and equitable at the time of execu-
tion, a court should consider the totality of the circum-
stances surrounding execution.’’ Id., 705. ‘‘[T]he ques-
tion of unconscionability is a matter of law to be decided
by the court based on all the facts and circumstances
of the case.’’ (Internal quotation marks omitted.) Id.Just as we have recognized that spouses must be free
to enter into contracts regarding the distribution of
property and other financial matters in the event of
divorce, we repeatedly have stated that spouses have
a continuing duty to support each other throughout the
duration of the marriage and, oftentimes, beyond. See,
e.g., Rubin v. Rubin, 204 Conn. 224, 228, 527 A.2d 1184(1987) (‘‘[t]he purpose of alimony is to meet one’s con-
tinuing duty to support’’ (internal quotation marks omit-
ted)); A. Rutkin et al., 8 Connecticut Practice Series:
Family Law and Practice with Forms (3d Ed. 2010)
§ 33:3, p. 35 (‘‘[a]limony . . . is based primarily [on] a
continuing duty to support arising out of the obligation
of support which the spouses assume toward each other
as a result of the marriage’’ (footnote omitted)). In par-
ticular, pendente lite alimony—also referred to as tem-
porary alimony—ensures that a dependent spouse is
supported while the parties are living apart pending the
outcome of the dissolution action. See, e.g., Stern v.
Stern, 165 Conn. 190, 196, 332 A.2d 78 (1973) (‘‘[t]he
purpose of an order that a husband make payments of
support pendente lite to his wife is to afford her a means
of livelihood while she is living apart from him pending
the determination of the question whether she has a
right to separate maintenance’’).9 Accordingly, General
Statutes § 46b-8310 authorizes the trial court to award
alimony and support pendente lite to either party
throughout the duration of a dissolution of marriage
proceeding. In determining whether to make an alimony
award pendente lite, the court is directed to consider
the factors enumerated in General Statutes § 46b-82.11
See General Statutes § 46b-83 (a).
The trial court also has broad discretion to award
attorney’s fees or expert fees, pendente lite, if circum-
stances and justice so require. See General Statutes
§ 46b-62 (a) (‘‘[i]n any proceeding seeking relief under
the provisions of this chapter . . . the court may order
either spouse . . . to pay the reasonable attorney’s
fees of the other in accordance with their respective
financial abilities and the criteria set forth in section
46b-82’’); Eslami v. Eslami, 218 Conn. 801, 818–21, 591
A.2d 411 (1991) (upholding awards of attorney’s fees
and expert witness fees as within trial court’s sound
discretion under § 46b-62); Medvey v. Medvey, 98 Conn.
App. 278, 287–88, 908 A.2d 1119 (2006) (concluding
that trial court did not abuse its discretion in awarding
plaintiff expert witness fees under § 46b-62).
With this legal framework in mind, we turn to the
defendant’s claim that the trial court improperly
declined to address the enforceability of the parties’
postnuptial agreement prior to awarding the plaintiff
pendente lite alimony and litigation expenses. As pre-
viously indicated, in declining the defendant’s request
to make a finding as to the agreement’s enforceability
prior to entering pendente lite orders, the trial court
relied on this court’s decision in Fitzgerald. The defen-
dant contends that the trial court’s reliance on Fitzger-
ald was misplaced because the agreement in that case
was a separation agreement, whereas the agreement in
the present case is a postnuptial agreement. We con-
clude that the distinction drawn by the defendant is
one without a difference in the context of the present
case and that the trial court properly relied on Fitzger-
ald in ordering the defendant to pay pendente lite ali-
mony and litigation expenses.
In Fitzgerald, four months before the plaintiff wife
filed a marital dissolution action, the parties entered
into a written separation agreement governing alimony
and child support—including temporary support—in
contemplation of their approaching divorce. Fitzgerald
v. Fitzgerald, supra, 169 Conn. 148. In her complaint, the
plaintiff sought to invalidate the separation agreement
and, later, moved for temporary alimony, custody, sup-
port, and counsel fees. Id., 149. The trial court, after
hearing oral argument on the plaintiff’s motion, ordered
the defendant to pay the plaintiff temporary alimony
and child support. Id. In so doing, ‘‘[t]he court recog-
nized the existence of the separation agreement but
ruled that its validity and effectiveness [were matters]
to be determined at the time of trial on the merits
of the plaintiff’s complaint, which, in the first count,
concerned the validity of the [agreement] and, in the
second count, the divorce action. The court concluded
that the validity and effectiveness of the [agreement]
need not be determined in awarding temporary alimony
and support.’’ Id., 150.
On appeal to this court, the defendant argued, inter
alia, that the trial court erred in failing to determine
the enforceability of the separation agreement prior to
ruling on the plaintiff’s request for pendente lite sup-
port. See id. (‘‘[t]he defendant’s principal contention
. . . is that the court erred in refusing to determine the
validity of the separation agreement prior to ordering
[him], contrary to that agreement, to pay temporary
support’’). We disagreed, reasoning that ‘‘[t]he court’s
authority to award alimony and support pendente lite
at the time of the hearing was expressly provided for
[by statute]’’ and that ‘‘[p]ayment pursuant to such an
award is to provide for the wife and the dependent
children while they are living apart from her husband
pending a determination of the issues in the case.’’ Id.,
151; see also Wolk v. Wolk, 191 Conn. 328, 330–31, 464
A.2d 780 (1983) (explaining that pendente lite support
is fundamentally different from final orders of support
entered at conclusion of dissolution proceeding). We
further reasoned that the proper time for a determina-
tion as to the enforceability of the parties’ separation
agreement was ‘‘when the case is tried on its merits,’’
because only then ‘‘will [the parties] have an opportu-
nity to be heard . . . in a meaningful manner.’’ Fitzger-
ald v. Fitzgerald, supra, 169 Conn. 151; see also id., 152
(‘‘[w]hether [certain] trusts may be relied [on] by the
defendant to fulfill his primary duty to support his minor
children is for the court to decide upon the full hearing
of the case, that is, when it is determined by the court
whether the separation agreement is valid and, if so
found, whether [it] is fair and equitable under all the
circumstances’’ (emphasis added)).
We find no merit in the defendant’s contention that
Fitzgerald is distinguishable because it involved a sepa-
ration agreement rather than a postnuptial agreement.
The underlying principle in Fitzgerald—namely, that a
determination regarding the validity of an agreement
may be made when the case is tried on its merits—
applies equally to any marital agreement, regardless of
whether it is a prenuptial, postnuptial, or separation
agreement. Nor do we agree with the defendant that
this court ‘‘signaled’’ in Bedrick ‘‘that reliance on Fitz-
gerald in the context of postnuptial agreements is mis-
placed.’’ Indeed, to the extent that Bedrick is relevant
at all, it is to underscore the propriety of the trial court’s
decision in the present case.
In Bedrick, we were required to determine whether
a postnuptial agreement is per se violative of public
policy and, therefore, unenforceable. See Bedrick v.
Bedrick, supra, 300 Conn. 693. In deciding that issue,
we explained that there are three types of marital agree-
ments—prenuptial, postnuptial, and separation—and
that, although separation agreements and postnuptial
agreements are both entered into during the marriage,
they are distinguishable insofar as one is entered into
in contemplation of divorce, whereas the other is
entered into ‘‘after a couple weds, but before they sepa-
rate, when the spouses plan to continue their marriage
. . . and when separation or divorce is not imminent.’’
(Citation omitted; internal quotation marks omitted.)
Id., 693 n.1. We ultimately concluded that the differ-
ences were significant enough to require that a higher
level of scrutiny be applied to postnuptial agreements
than is applied to the other two agreements. Id., 703–
704. Specifically, we explained that, ‘‘[b]ecause of the
nature of the marital relationship, the spouses to a post-
nuptial agreement may not be as cautious in contracting
with one another as they would be with prospective
spouses, and they are certainly less cautious than they
would be with an ordinary contracting party. With les-
sened caution comes greater potential for one spouse
to take advantage of the other.’’ Id., 703.
We further stated that spouses entering into a post-
nuptial agreement ‘‘do not contract under the same
conditions as either prospective spouses or spouses
who have determined to dissolve their marriage,’’ mean-
ing that ‘‘a postnuptial agreement stands on a different
footing from both a [prenuptial agreement] and a sepa-
ration agreement. Before marriage, the parties have
greater freedom to reject an unsatisfactory [prenuptial
agreement]. . . .
‘‘A separation agreement, in turn, is negotiated when
a marriage has failed and the spouses intend a perma-
nent separation or marital dissolution. . . . The cir-
cumstances surrounding [postnuptial] agreements in
contrast are pregnant with the opportunity for one party
to use the threat of dissolution to bargain themselves
into positions of advantage.’’ (Internal quotation marks
omitted.) Id., 701; see also id., 703 (‘‘Prospective spouses
share a confidential relationship . . . but spouses
share the institution of marriage, one of the most funda-
mental of human relationships . . . . Courts simply
should not countenance either party to such a unique
human relationship dealing with each other at arms’
length.’’ (Citations omitted; internal quotation marks
omitted.)).
The defendant does not explain, nor can we perceive,
how this court’s statements in Bedrick explaining the
differences between the three types of marital agree-
ments takes this case outside of the holding in Fitzger-
ald that the validity of marital agreements should be
assessed when the case is tried on its merits, or how
it otherwise informs the question of when the trial court
should decide the enforceability of a postnuptial agree-
ment. However, to the extent that Bedrick has any bear-
ing at all on that question, we believe that it reinforces
our conclusion that the trial court acted within its dis-
cretion in deferring its decision until the end of trial
given that, under Bedrick, the court is required to con-
duct a more searching inquiry into the circumstances
surrounding the postnuptial agreement’s execution
than the trial court in Fitzgerald was required to under-
take with respect to the separation agreement in that
case.12 See id., 703–704.
Indeed, as the trial court noted, because of the com-
plexity of the defendant’s finances, valuing his assets—
a necessary step in determining the enforceability of the
postnuptial agreement—will likely require considerable
discovery and expert assistance, a process that could
take a good deal of time during which, under the bifur-
cated approach advocated by the defendant, the plain-
tiff would be left without the means to support herself,
to pay an attorney, and to hire an expert to make sense
of the defendant’s complicated finances.13
In reaching our conclusion, we are mindful that the
‘‘the question of whether enforcement of [a postnuptial]
agreement would be unconscionable is analogous to
determining whether enforcement of an agreement
would work an injustice. . . . Marriage, by its very
nature, is subject to unforeseeable developments, and
no agreement can possibly anticipate all future events.
Unforeseen changes in the relationship, such as having
a child, loss of employment or moving to another state,
may render enforcement of the agreement unconsciona-
ble.’’ (Citation omitted.) Id., 706. This is why we held
in Bedrick that ‘‘a court may enforce a postnuptial
agreement only if it . . . [is] not unconscionable at
the time of dissolution.’’ (Emphasis added; footnote
omitted.) Id., 703–704. We are not prepared to say that
unforeseen changes cannot also occur during the pen-
dency of a divorce action. This is all the more reason
why the trial court’s broad equitable powers and discre-
tion in deciding matters arising in a dissolution action
must include the discretion to postpone a decision as
to the enforceability of a marital agreement until the
parties have had a full and fair opportunity to litigate
all issues in the case at a trial on the merits.14 See, e.g.,
Loughlin v. Loughlin, 280 Conn. 632, 641, 910 A.2d
963 (2006) (‘‘Although created by statute, a dissolution
action is essentially equitable in nature. . . . The
power to act equitably is the keystone to the court’s
ability to fashion relief in the infinite variety of circum-
stances [that] arise out of the dissolution of a marriage.
. . . [I]n the exercise of its inherent equitable powers
it may also consider any other factors [besides those
enumerated in the statute that] may be appropriate for
a just and equitable resolution of the marital dispute.’’
(Internal quotation marks omitted.)); Gluck v. Gluck,
181 Conn. 225, 228, 435 A.2d 35 (1980) (‘‘[a] dissolution
of a marriage, although a creature of statute, is essen-
tially an equitable action’’).
The defendant contends that our decision today could
work an injustice because, if the trial court ultimately
determines that the postnuptial agreement is enforce-
able and, further, that it precludes the award of the
pendente lite alimony and litigation expenses at issue,
he may be unable to obtain restitution for the pendente
lite alimony and litigation expenses he was required to
pay the plaintiff throughout the course of the litigation.
The defendant argues that the trial court’s decision is
‘‘particularly harmful where, as here, the plaintiff . . .
is without the means necessary to repay the defendant
if the agreement is ultimately enforced.’’
We are not unsympathetic to the defendant’s argu-
ment and recognize the possibility that he may not be
made entirely whole in the event that the trial court
determines that the parties’ postnuptial agreement is
enforceable under the criteria set forth in Bedrick for
determining that question and that its provisions, in
fact, preclude the award of the pendente lite alimony
or litigation expenses at issue. Even if this scenario
occurs, however, the defendant may not be without any
remedy. For example, the trial court could ultimately
adjust any financial orders to compensate the defendant
for pendente lite payments that were made in contra-
vention of the terms of the agreement, should it be
found to be enforceable and should the court, in the
exercise of its discretion, determine that such a remedy
is warranted. See Volid v. Volid, 6 Ill. App. 3d 386, 393,
286 N.E.2d 42 (1972) (‘‘[t]he [trial] court in the exercise
of its discretion awarded temporary alimony . . . [but]
[t]he order should have contained a provision that any
temporary sums for [the wife’s] support [that] are paid
will ultimately be deducted from the lump sum settle-
ment agreed to by the parties [in their prenuptial agree-
ment]’’).
Moreover, by our decision today, we do not foreclose
the ability of the trial court to decide the enforceability
of a marital agreement in connection with a request for
pendente lite alimony or litigation expenses if the court
determines, in its considered judgment, that a decision
can be made at that time without doing an injustice
to either party. See Clarke v. Clarke, Superior Court,
judicial district of Stamford-Norwalk, Docket No. FA17-
6031321-S (October 10, 2017) (65 Conn. L. Rptr. 327,
328) (applying prenuptial agreement in connection with
request for pendente lite alimony because ‘‘enforcement
of the premarital agreement . . . is not an issue in dis-
pute; both parties are seeking its enforcement’’). In
considering such a request, the court is also free to
fashion a pendente lite order of alimony or litigation
expenses that takes into account the existence of a
marital agreement that purports to preclude such sup-
port. See Belcher v. Belcher, 271 So. 2d 7, 9 (Fla. 1972)
(provision in prenuptial agreement that purports to con-
tract away spouse’s future obligation to pay alimony,
litigation expenses, and attorney’s fees during separa-
tion prior to dissolution of the marriage ‘‘is a factor to
be considered but not the sole factor, nor conclusive,
in a determination of [an award for] support pendente
lite’’ (emphasis omitted)). For the reasons previously
set forth, however, we conclude that a trial court is also
free to decide to delay a decision on the enforceability
of a postnuptial agreement until the conclusion of trial
if circumstances and equity so require.
The trial court’s orders are affirmed.
In this opinion the other justices concurred.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018); we
decline to identify any party protected or sought to be protected under a
protective order or a restraining order that was issued or applied for, or
others through whom that party’s identity may be ascertained.
** January 27, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
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.
2
Under the postnuptial agreement, individual property is defined as the
‘‘monetary value of property, which a party held on the [d]ate of [m]arriage,
plus the monetary value on the date of transfer to a party of any bequest,
trust interest, inheritance, gift, insurance benefits or the like received by a
party after the [d]ate of [m]arriage and prior to a [t]ermination [e]vent . . . .’’
3
Marital property is defined in the postnuptial agreement as ‘‘the increase
in value of the [i]ndividual [p]roperty of the parties held on the [d]ate of
[m]arriage until a [t]ermination [e]vent . . . plus . . . the increase in the
monetary value from the date of transfer to a party of any bequest, trust
interest, inheritance, gift, insurance benefits or the like received by a party
after the [d]ate of [m]arriage until a [t]ermination [e]vent.’’
4
There are separate criminal charges pending against the plaintiff that
relate to the April, 2019 altercation with the defendant.
5
Specifically, the plaintiff’s motions for pendente lite support requested
that the court order the defendant to pay her (1) $25,000 per month in
temporary alimony, retroactive to October 31, 2019; (2) $83,242 in past due
attorney’s fees, $250,000 in prospective attorney’s fees, and $100,000 per
month, beginning on May 1, 2020, in presumed ongoing attorney’s fees; and
(3) $25,000 for the retention and utilization of experts.
6
Initially, the defendant’s appeal raised a second claim, specifically, that
the trial court abused its discretion in awarding pendente lite alimony and
litigation expenses because its attribution of a net income to the defendant
of $75,000 per month was in error. The defendant subsequently withdrew
this claim, and, therefore, it is not before us on appeal.
7
The plaintiff also argues, as an alternative ground for affirmance, that
enforcing the postnuptial agreement now to preclude pendente lite alimony
and litigation expenses on the facts found by the trial court would be
unconscionable. As we discuss more fully in this opinion, any hearing on
the enforceability of the postnuptial agreement will require extensive pretrial
discovery and testimony, including the testimony of various experts. Accord-
ingly, the existing record is inadequate for our review of this claim.
8
‘‘Prenuptial agreements entered into on or after October 1, 1995, are
governed by the Connecticut Premarital Agreement Act, General Statutes
§ 46b-36a et seq. The statutory scheme provides that a prenuptial agreement
is unenforceable when: (1) the challenger did not enter the agreement volun-
tarily; (2) the agreement was unconscionable when executed or enforced;
(3) the challenger did not receive a fair and reasonable disclosure of the
amount, character and value of property, financial obligations and income
of the other party before execution of the agreement; or (4) the challenger
did not have a reasonable opportunity to consult with independent counsel.
General Statutes § 46b-36g . . . .’’ (Citation omitted; internal quotation
marks omitted.) Bedrick v. Bedrick, supra, 300 Conn. 699–700.
9
We recognize that much of our earlier case law addressing spousal
support reflects the outdated and paternalistic gender hierarchy of a bygone
era, when it was considered the husband’s sole duty to provide for the wife
and children. See, e.g., Cary v. Cary, 112 Conn. 256, 259, 152 A. 302 (1930)
(‘‘[t]he common-law obligation of the husband to give support to his wife
is the foundation [on] which alimony in this [s]tate rests’’). Indeed, earlier
versions of our alimony statute provided for the payment of alimony only
from the husband to the wife, presumably under a theory that a wife would
never have a duty to support her husband. See, e.g., General Statutes (1918
Rev.) § 5287 (‘‘[t]he superior court . . . may order alimony to be paid from
the husband’s income’’ (emphasis added)). Our current statute, however,
provides for an award of alimony to either party; see General Statutes § 46b-
82 (‘‘the Superior Court may order either of the parties to pay alimony to
the other’’ (emphasis added)); and this court has since emphasized the
right of either party to receive such support, depending on the facts and
circumstances of each case. See, e.g., Fattibene v. Fattibene, 183 Conn. 433,
441 n.4, 441 A.2d 3 (1981) (‘‘[t]he Connecticut [alimony] statute avoids the
equal protection constitutional infirmity of the statutes of some other states
which provide that husbands, but not wives, may be required to pay alimony
[by providing that the court can award alimony to either party]’’). Moreover,
other provisions of our General Statutes require relatives, including spouses,
to furnish necessary support to a spouse or a child under the age of eighteen,
according to such relative’s ability. See General Statutes § 46b-215; see also
General Statutes § 17b-745.
10
General Statutes § 46b-83 (a) provides in relevant part: ‘‘At any time
after the return day of a complaint under section 46b-45 or 46b-56 or after
filing an application under section 46b-61, and after hearing, 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. . . .’’
11
General Statutes § 46b-82 (a) provides in relevant part: ‘‘In determining
whether alimony shall be awarded, and the duration and amount of the
award, the court shall consider . . . the length of the marriage, the causes
for . . . dissolution of the marriage . . . the age, health, station, occupa-
tion, amount and sources of income, earning capacity, vocational skills,
education, employability, estate and needs of each of the parties . . . .’’
12
The defendant argues that ‘‘the heightened scrutiny afforded postnuptial
agreements . . . is nothing more than an obligation to apply the usual
criteria that guide the relevant analysis with heightened diligence,’’ arguing
that the guideposts used to analyze prenuptial and postnuptial agreements
are the same in Connecticut and, therefore, that the heightened scrutiny
afforded to postnuptial agreements ‘‘fails to present any obstacle to
determining their validity and enforceability at a preliminary hearing.’’ (Cita-
tion omitted; internal quotation marks omitted.) We are unpersuaded. As
we explained, and as the trial court found, such an inquiry will likely take
considerable time and consume substantial resources, given the complexity
of the defendant’s finances, during which the plaintiff would be left without
the very funds that she would need to litigate the matter. We can also
imagine other issues relating to the enforceability of a marital agreement
that can and likely will arise during the pendency of a dissolution action
that would be ill-suited to summary adjudication at the pendente lite stage
of a dissolution proceeding.
13
Although the issue is not before us, we note that a number of courts
have concluded that ‘‘an agreement of the parties that waives or limits the
right to request temporary support and attorney’s fees to a spouse in need
in a pending dissolution action is a violation of public policy.’’ Khan v.
Khan, 79 So. 3d 99, 100 (Fla. App. 2012), citing Belcher v. Belcher, 271 So.
2d 7 (Fla. 1972); see also McAlpine v. McAlpine, 679 So. 2d 85, 90 (La. 1996)
(‘‘prenuptial waivers of alimony pendente lite [are] void as contrary to the
public policy of this [s]tate’’). See generally Furer v. Furer, Docket No.
51198, 2010 WL 3271504, *2 (Nev. June 10, 2010) (decision without published
opinion, 126 Nev. 712, 367 P.3d 770) (‘‘court has discretion in any divorce
action to require either party to pay the other party money necessary for
temporary maintenance or to enable the other party to participate in the
case’’). In McHugh v. McHugh, supra, 181 Conn. 489, this court observed
that provisions of a prenuptial agreement purporting to relieve one spouse
of the duty to support the other during the marriage have been held to
contravene public policy.
14
The defendant nevertheless argues that, ‘‘[a]s our sister states have held
. . . [our] policy preferences are chilled when pendente lite relief is ordered
that directly contravenes the terms of a nuptial agreement’’ and that ‘‘a
majority of jurisdictions hold a preliminary hearing on the validity and
enforceability of a nuptial agreement when the existence of such an agree-
ment is [pleaded] as part of the dissolution action or [when] it is raised as
a defense to pendente lite support.’’ In support of this argument, the defen-
dant cites a number of out-of-state cases, most of which are unreported,
that he claims ought to persuade us to adopt the rule he advocates. Two
of these cases, however, do not involve pendente lite support or a request
for a preliminary hearing to determine the enforceability of a marital agree-
ment. See Volid v. Volid, 6 Ill. App. 3d 386, 286 N.E.2d 42 (1972); Ware v.
Ware, 224 W. Va. 599, 687 S.E.2d 382 (2009). These cases, therefore, have
no value in the context of the present case. Some of the cases that do touch
on the issue before us are inapposite because those states have criteria for
evaluating the enforceability of marital agreements that are different from
our own. See Bamberger v. Hines, Docket Nos. 2007-CA-000933-MR and
2007-CA-000992-MR, 2009 WL 1025122 (Ky. App. April 17, 2009); Darr v.
Darr, 950 S.W.2d 867 (Mo. App. 1997); Colon v. Colon, Docket No. A-5986-
02T5, 2006 WL 2318250 (N.J. Super. App. Div. August 11, 2006); Simeone v.
Simeone, 525 Pa. 392, 581 A.2d 162 (1990); Howell v. Howell, Docket No.
M2019-01205-COA-R3-CV, 2021 WL 408862 (Tenn. App. February 5, 2021),
appeal denied, Tennessee Supreme Court, Docket No. M2019-01205-SC-R11-
CV (May 12, 2021); Gust v. Gust, Docket Nos. 0901-15-2 and 0024-16-2, 2016
WL 2636612 (Va. App. May 10, 2016). To whatever extent any of the cited
cases apply a similar framework to our own in evaluating marital agreements
and nevertheless require that courts determine the enforceability of the
agreement prior to awarding pendente lite support, such as Trbovich v.
Trbovich, 122 App. Div. 3d 1381, 1383–84, 997 N.Y.S.2d 855 (2014), those
courts are free to do as they see fit with respect to these matters. We remain
convinced that our approach is the better course.