Zhou v. Zhang ( 2020 )

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YUN ZHOU v. HAO ZHANG
(SC 20146)
Robinson, C. J., and Palmer, D’Auria, Mullins,
Kahn and Vertefeuille, Js.
Syllabus
The plaintiff, whose marriage to the defendant had been dissolved, appealed,
challenging the trial court’s custody orders and claiming that the trial
court improperly declined to enforce the parties’ purported agreement
to revoke an earlier postnuptial agreement and incorrectly determined
that the postnuptial agreement was enforceable. Approximately six years
into the parties’ marriage, during which they had two children, the
parties, after seeking and obtaining the advice of counsel, entered into
a postnuptial agreement pursuant to which they agreed that, if either
party sought a divorce between certain specified dates, the plaintiff
would receive a certain amount of alimony and a specified distribution
of marital property. Thereafter, the plaintiff filed for divorce when the
postnuptial agreement was effective, and the parties entered into divorce
mediation. The parties retained S as a mediator. The defendant agreed
to retain S in reliance on S’s representation on S’s website that mediation
was voluntary and that any party could withdraw from mediation without
sacrificing his or her rights. Moreover, the mediation agreement between
the parties and S provided that the parties agreed to keep all statements
made and materials and documents prepared and disclosed during medi-
ation confidential and that this confidentiality would extend to any
future judicial proceedings. Shortly after mediation commenced, the
plaintiff sent an e-mail to S and the defendant, requesting a revocation
of the parties’ postnuptial agreement. S responded in an e-mail addressed
to both the plaintiff and the defendant that he could help with that
matter but that the ultimate separation agreement that the parties would
reach at the conclusion of mediation would govern and would effectively
override the parties’ postnuptial agreement. S nevertheless prepared a
revocation agreement, which the parties signed after making full disclose
to one another regarding their financial information. Although the plain-
tiff received legal advice from her own attorney in conjunction with the
signing of the revocation agreement, the defendant attempted to obtain
but was unsuccessful in securing legal advice from an independent
attorney prior to signing the revocation agreement. Mediation ultimately
ended without the parties reaching a separation agreement, and the
matter was tried to the court. The trial court heard testimony from
H, a court-appointed psychologist who performed a forensic custody
evaluation, and B, the guardian ad litem for the children, among other
witnesses. The trial court determined that, with the exception of one
provision that was severable from the remainder of the postnuptial
agreement, that agreement was enforceable. The trial court also deter-
mined that the agreement purporting to revoke the postnuptial agree-
ment was unenforceable because, inter alia, the defendant had no legal
counsel when he signed the revocation agreement, the defendant relied
on a provision in the mediation agreement signed by both parties that
all materials prepared during mediation, presumably including the pur-
ported revocation of the postnuptial agreement, would remain confiden-
tial and were to be used solely in an effort to obtain a complete settlement
that never occurred, and the defendant relied on S’s representations on
his website that the defendant could withdraw from mediation at any
time without sacrificing his rights, including those previously guaranteed
in the postnuptial agreement. The trial court rendered judgment dissolv-
ing the parties’ marriage, awarding alimony and a share of the marital
assets to the plaintiff in accordance with the parties’ postnuptial agree-
ment, and awarding the parties joint legal and physical custody of the
children but granting the defendant final decision-making authority as
to matters concerning the children about which the parties disagreed.
On the plaintiff’s appeal, held:
1. The trial court correctly concluded that the parties’ agreement purporting
to revoke their postnuptial agreement was unenforceable: the defen-
dant’s purported understanding that the revocation agreement would
not be binding unless the parties reached a full and final settlement of the
disputed issues was supported by S’s representations to the defendant
on S’s website, in S’s e-mail to the parties during mediation, and in the
mediation agreement, and the trial court’s finding that the defendant’s
understanding was based on those representations was amply supported
by his testimony; accordingly, the revocation agreement was unenforce-
able against the defendant over his objection because a full and final
resolution of the issues during mediation was a condition precedent to
the enforcement of the revocation agreement, and it was undisputed
that no such resolution ever occurred; moreover, there was no merit
to the plaintiff’s claim that the trial court’s consideration of S’s represen-
tations on his website, in the e-mail to the parties, and in the mediation
agreement for the purpose of ascertaining the defendant’s understanding
and intent with respect to the revocation agreement violated the parol
evidence rule, as that rule does not prevent a party from relying on
extrinsic evidence to establish the existence of a condition precedent
to the formation of a contract, and, therefore, the trial court properly
considered parol evidence in evaluating the defendant’s claim that the
revocation agreement was not binding in the absence of a final settle-
ment agreement.
2. The plaintiff could not prevail on her claim that the trial court had
incorrectly determined that the parties’ postnuptial agreement was
enforceable because it was fair and equitable at the time of execution
and was not unconscionable at the time of dissolution: the trial court,
in considering the entirety of the evidence, reasonably concluded that
the plaintiff’s decision to enter into the postnuptial agreement was volun-
tary and not the product of duress; moreover, the evidence supported
the trial court’s finding that the plaintiff understood her rights and
obligations under the postnuptial agreement notwithstanding its length
and complexity, as the plaintiff was highly educated, had independent
counsel during the negotiation and execution of that agreement, and
acknowledged in the agreement her complete understanding of the
effects of the agreement; furthermore, the plaintiff failed to identify a
single change of circumstance since the execution of the postnuptial
agreement that would warrant the conclusion that its enforcement at
the time of dissolution would be unconscionable.
3. The trial court did not abuse its discretion when, in its custody orders,
it granted the defendant final decision-making authority with respect
to the parties’ children in situations in which the parties were unable to
agree: notwithstanding the plaintiff’s claim that the trial court improperly
based its custody orders on the testimony of B, the guardian ad litem,
on the ground that B testified that she had not seen the children in two
years, there was nothing in the record to suggest that B did not conduct
an investigation into the best interests of the children during the pen-
dency of the dissolution, because, even though B met with the children
only once, shortly after her appointment, due to their tender years and
to keep them removed from their parents’ marital conflicts, B was in
regular communication with the parties, read the reports prepared by
H, the court-appointed psychologist, and consulted with him about his
findings, and attended all court proceedings and depositions; moreover,
the plaintiff had a full and fair opportunity to cross-examine B about
any possible deficiencies concerning the time she spent with the children
and how, if at all, any such deficiencies impaired her ability to form a
legitimate opinion as to their best interests, and the plaintiff failed to
demonstrate that she was prejudiced by B’s limited contact with the
children; furthermore, H, who spent far more time evaluating the chil-
dren, largely agreed with B’s observations and recommendations, and
the trial court’s granting of final decision-making authority to the defen-
dant was based on its finding that the defendant had more insight into the
children’s developmental needs, activities, education and environment,
which in turn was based on the testimony of B as well as other witnesses.
Argued November 14, 2018—officially released February 11, 2020
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 case was trans-
ferred to the Regional Family Trial Docket at Mid-
dletown and tried to the court, Gould, J.; judgment
dissolving the marriage and granting certain other relief,
from which the plaintiff appealed. Affirmed.
Gaetano Ferro, with whom was Olivia M. Hebens-
treit, for the appellant (plaintiff).
Kenneth J. Bartschi, with whom were Scott T. Garos-
shen and, on the brief, Wayne Effron and Reuben Mid-
ler, for the appellee (defendant).
Campbell D. Barrett and Johanna S. Katz filed a
brief for the guardian ad litem.
Opinion
PALMER, J. The plaintiff, Yun Zhou, appeals from
the judgment of the trial court dissolving her marriage
to the defendant, Hao Zhang. On appeal, the plaintiff
claims that the trial court (1) improperly declined to
enforce the parties’ purported written revocation of
their postnuptial agreement1 (revocation agreement),
(2) incorrectly determined that the postnuptial agree-
ment was enforceable, and (3) improperly awarded the
parties joint legal and physical custody of their minor
children, with the defendant having final decision-mak-
ing authority. We reject the plaintiff’s claims and, there-
fore, affirm the judgment of the trial court.
The record reveals the following relevant facts, as
found by the trial court and supplemented by the record,
and procedural history. The parties were married in
2006 and have two children, a son and a daughter, who
were born in 2006 and 2008, respectively. ‘‘The plaintiff
. . . is in good health. She, like the defendant, is a
native of China and a permanent resident of the United
States.2 She has a doctoral degree in mechanical and
nuclear engineering from the University of California,
Berkeley. She was employed as a research fellow at
the University of Maryland and at the John F. Kennedy
School of Government at Harvard University from 2007
[until] 2013. Her highest salary from those positions at
that time was $50,000 per year. In addition, she worked
as a private consultant from 2012 through 2014, earning,
at her highest point from both positions, income of
$77,500 a year. She has published numerous papers and
articles in the field of nuclear engineering. She has not
worked outside of the home since 2014. She is currently
studying for a master’s degree in public administration
at Columbia University. She plans to resume a career
in public policy analysis or research after obtaining her
master’s degree . . . . Based on the foregoing, the
[court] finds that the plaintiff has an annual earning
capacity of $77,500.
‘‘The defendant . . . [also] is in good health. He has
a doctoral degree in computer science from the Univer-
sity of California, Berkeley. He is employed as a manag-
ing director for Two Sigma Investments in New York
City. His base salary is $250,000 a year, according to
his most recent financial affidavit.3
‘‘The parties are . . . joint owners of the marital resi-
dence . . . in Greenwich . . . . The property has a
fair market value of $3.1 million, and is encumbered by
a mortgage in the amount of $2,011,311, yielding equity
in the amount of $1,088,689. In addition, the defendant
maintains two rental properties for himself, one in New
York City and another in Greenwich . . . with a total
monthly rental fee of $14,475. . . .
‘‘The [parties’] children are enrolled in myriad activi-
ties, with [the son] involved [in] tennis, piano, water
polo, and chess, and [the daughter] involved in swim-
ming, flute, art and dance.’’ (Footnote added; foot-
note altered.)
On February 25, 2012, after seeking and obtaining
the advice of counsel, disclosing to one another their
assets and liabilities, and exchanging financial affida-
vits, the parties entered into and signed a properly
acknowledged postnuptial agreement. That agreement
provides that, if one of the parties commenced a dissolu-
tion action between February 1, 2013, and February 1,
2015, the plaintiff would receive ‘‘$350,000 per year
($29,167 per month) of alimony [for] . . . a time period
equal to one half the length of the parties’ marriage as
measured from the marriage date to the date of the
commencement of the [dissolution] [a]ction.’’ (Internal
quotation marks omitted.) The plaintiff also would
receive the marital residence and one third of the par-
ties’ aggregate net worth4 as of the date of the dissolu-
tion decree. The postnuptial agreement further pro-
vides: ‘‘If the market price of the house less the
mortgage loan exceeds . . . one third of the [p]arties’
[a]ggregate [n]et [w]orth, the [plaintiff] will not receive
any portion of either party’s assets. Otherwise, the
[plaintiff] will acquire the amount of [one third] of the
[p]arties’ [a]ggregate [n]et [w]orth less the equity [in
the] marital [residence] (the market price of the marital
[residence] less the mortgage loan).’’ Paragraph 8.1 of
the postnuptial agreement permits revocation ‘‘if made
in writing and executed with the same formality as [the]
[a]greement.’’ In addition, the postnuptial agreement
has a severability clause, which provides that, if ‘‘any
provision, clause, section or paragraph of [the] [a]gree-
ment is invalid, is void or unenforceable for any reason,
it shall be deemed severable from the remainder of
the [a]greement.’’
Thereafter, the parties concluded that their marriage
had broken down irretrievably, and, on October 23,
2013, the plaintiff filed for divorce. In an effort to reach a
mutually agreeable resolution of the matter, the parties
decided to enter into mediation. Upon receiving the
names of two prospective mediators from the plaintiff,
the defendant visited the website of one of them, Mau-
rice Segall. Among other things, Segall’s website con-
tained the following representations about the advan-
tages of mediation: ‘‘The couple has control over the
process, and control over the decisions that affect
[their] lives and the lives of [their] children.’’ (Emphasis
in original.) ‘‘With the help of the mediator, the couple
is able to make their own fully informed decisions.’’
(Emphasis in original.) ‘‘Mediation is informal and con-
fidential.’’ (Emphasis in original.) ‘‘Mediation is entirely
voluntary. Anyone can leave mediation at any time,
without sacrificing any of [his or her] rights.’’ (Emphasis
in original.) In reliance on this language, the defendant
agreed to retain Segall, and, in October, 2013, Segall
and the parties signed a mediation agreement, which
provided in relevant part: ‘‘The [p]arties agree to keep
confidential all statements made during the mediation,
as well as all written, photographic, electronic or
printed material and documents prepared or presented
during the mediation, except that either [p]arty may
share that information with his or her attorney. This
agreement regarding confidentiality shall pertain to all
circumstances, including but not limited to any civil
and criminal proceedings.’’
Soon after mediation commenced, the plaintiff
informed the defendant that she favored revoking the
parties’ postnuptial agreement. According to the defen-
dant, he told the plaintiff that, ‘‘under the umbrella of
the mediation, we could try this [revocation] and see
if we can negotiate without the postnuptial [agree-
ment].’’ On December 20, 2013, the plaintiff sent Segall
and the defendant an e-mail inquiring as to whether
Segall could assist the parties in revoking the postnup-
tial agreement. In an e-mail response to the parties
that same day, Segall stated: ‘‘Yes, I can help with the
[postnuptial] matter; however, as a practical matter the
ultimate separation agreement that you’ll reach will
contain the terms that will govern, and would effectively
override the [postnuptial agreement]. [Let’s] discuss
this when we next meet.’’ Segall then proceeded to
prepare a document entitled ‘‘Revocation of Postnup-
tial Agreement.’’
Prior to signing the revocation agreement, the parties
again made full disclosure to one another of their assets
and liabilities and exchanged financial affidavits. In a
series of e-mails beginning and concluding with Segall’s
e-mails to the parties dated January 10 and 17, 2014,
respectively, Segall and the parties discussed the draft-
ing of the revocation agreement and scheduled a time
to sign it. During this period, the plaintiff’s attorney,
Andrew Nemiroff, advised the plaintiff on the revoca-
tion. In particular, he advised the plaintiff to have Segall
remove language in the original draft agreement indicat-
ing that the agreement was supported by consideration
because, as the plaintiff testified at trial, ‘‘no new prom-
ises, undertakings, or consideration [was] exchanged
in connection with the revocation . . . agreement.’’ At
about this same time, the defendant, who previously
had not been represented during mediation, tried to
contact attorney Wayne Effron, who had represented
him in connection with the parties’ postnuptial agree-
ment, but Effron did not respond to the defendant’s
attempts to reach him. Nevertheless, on January 18,
2014, the parties duly executed the revocation agree-
ment.5
According to the defendant, he signed the agreement
because he understood that all documents and agree-
ments created during the mediation process would
remain confidential and were to be used solely by the
parties for the purpose of obtaining a complete settle-
ment agreement, that is, an agreement that resolved all
of the disputed issues. Consistent with this understand-
ing, he further understood that, because ‘‘mediation is
an all or nothing process,’’ any document that he signed
would have no legal effect unless and until the media-
tion process resulted in the parties’ reaching such a
complete agreement. The defendant’s understandings
regarding the agreement were based on the representa-
tions set forth on Segall’s website concerning the right
of either party to terminate mediation at any time with-
out sacrificing any of his or her preexisting rights, Seg-
all’s December 20, 2013 e-mail to the parties indicating
that revocation of the postnuptial agreement was not
necessary because it effectively would be superseded
by any mediated settlement between the parties, and
paragraph 4 (a) of the mediation agreement itself, which
provides that all documents prepared or presented dur-
ing mediation were to remain confidential for all pur-
poses, including judicial proceedings.6
During mediation, Segall also prepared a proposed
parenting plan for the parties, informing them that, as
with the revocation agreement, this plan would be used
solely in an effort to obtain a complete settlement agree-
ment and would not become effective unless ratified
by the court. On February 26, 2014, the parties signed
the proposed parenting plan, which, with the consent
of both parties, subsequently was filed with the court
so as to meet a case management deadline that had
been set in their pending dissolution action. The court,
however, never canvassed the parties with respect to
the agreement; nor was the plan ever incorporated into
any order of the court. In July, 2014, mediation ended
without the parties reaching a settlement agreement. On
September 4, 2014, following the defendant’s decision
to move out of the marital home, where both parties
had been residing, the defendant filed a motion to mod-
ify the proposed parenting plan, requesting that the
parties be given joint physical and legal custody of their
minor children. The court, however, never ruled on
that motion.
A dissolution trial was conducted over a period of
eighteen days in October, November, and December,
2016, during which the trial court heard extensive testi-
mony from several witnesses, including each of the
parties; Harry Adamakos, a court-appointed psycholo-
gist who performed a forensic custody evaluation;
Attorney Bonnie L. Amendola, the guardian ad litem
for the parties’ minor children; Bryan J. Matthews, a
friend of the plaintiff; and Kane Winn, a private investi-
gator retained by the defendant. On January 3, 2017,
the trial court issued a memorandum of decision in
which it found that the parties’ marriage had broken
down irretrievably, with more fault attributable to the
plaintiff, and entered a decree dissolving the marriage.
The court awarded the parties joint legal and physical
custody of their minor children with the defendant hav-
ing final decision-making authority. The court explained
its reasons for awarding final decision-making authority
to the defendant as follows: ‘‘Individually, both the
plaintiff and the defendant are good parents. However,
the defendant has more insight into the children’s devel-
opmental needs, activities, education and environment.
He has been able to structure his work time to [have]
additional time off for the children on Wednesdays,
Thursdays and Fridays. The plaintiff, on the other hand,
is deceptive, defensive, rigid, impulsive, manipulative,
and lacks objectivity regarding the defendant. The plain-
tiff is controlling and authoritative in parental situations
that involve the defendant. The defendant has been
marginalized from his children’s lives and, as such, does
not trust the plaintiff. The plaintiff has belittled the
defendant’s family and told the defendant that his job
has no value, that he is merely a ‘Wall Street guy chasing
dollars.’ The plaintiff lied to the guardian ad litem and
the forensic evaluator about her personal life and has,
thus, forced the children into ‘secret keeping’ from the
defendant. There has been little to no coparenting
between them; instead, the plaintiff unilaterally sched-
ules the children’s activities and social events, and only
tells the defendant about them after they have been
scheduled or have occurred.’’
With respect to the parties’ revocation agreement,
the trial court acknowledged that ‘‘there is scant Con-
necticut legal authority [concerning] the requirements
for an effective revocation of a postnuptial agreement.’’
Given the dearth of such authority, the trial court sub-
jected the agreement to the same special scrutiny that
courts apply in determining the enforceability of a post-
nuptial agreement. Under that standard, which was first
articulated by this court in Bedrick v. Bedrick, 300
Conn. 691, 17 A.3d 17 (2011), a postnuptial agreement is
enforceable ‘‘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. ‘‘[T]he 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 property, both jointly and separately held, and
all of the financial obligations and income of the other
spouse. . . . [I]n determining whether a particular
postnuptial agreement is fair and equitable at the time
of execution, a court should consider the totality of
the circumstances surrounding execution. A court may
consider various factors including the nature and com-
plexity of the agreement’s terms, the extent of and dis-
parity in assets brought to the marriage by each spouse,
the parties’ respective age, sophistication, education,
employment, experience, prior marriages, or other
traits potentially affecting the ability to read and under-
stand an agreement’s provisions, and the amount of
time available to each spouse to reflect [on] the agree-
ment after first seeing its specific terms . . . [and]
access to independent counsel prior to consenting to
the contract terms. . . .
‘‘With regard to . . . whether a postnuptial agree-
ment is unconscionable at the time of dissolution, [that]
. . . determination . . . is to be made on a case-by-
case basis, taking into account all of the relevant facts
and circumstances.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Id., 704–705.
‘‘[T]he question of whether enforcement of an agree-
ment would be unconscionable is analogous to
determining whether enforcement of an agreement
would work an injustice.’’7 Id., 706.
Applying this standard to the parties’ revocation
agreement, the trial court found, inter alia, that, ‘‘prior to
signing the document, the parties revealed their entire
personal and joint assets and liabilities to one another,
and provided the other with a full, complete and current
financial affidavit. Both parties signed the agreement.’’
The trial court also found, however, that, ‘‘[c]ontrary
to the terms of the alleged revocation, and unlike the
circumstances surrounding the negotiation and signing
of the postnuptial agreement . . . the defendant had
no legal counsel at the time he signed the revocation.
The defendant was told by the mediator [Segall] to sign
the alleged revocation document only six days after it
was broached to him, and he informed [Segall] that he
was unable to contact his attorney during that time
period. . . . Consequently, the defendant . . . was
never advised that the plaintiff might seek to enforce
[the revocation agreement], and, arguably, the effect of
arguing that he was coerced into signing it or, in the
alternative, signed it under duress.’’
In addition to its finding that the defendant did not
have the requisite access to counsel, the trial court
determined that the revocation agreement was unen-
forceable as a matter of law because ‘‘the defendant
relied on paragraph 4 (a) of the parties’ mediation agree-
ment, as well as correspondence from [Segall] . . .
that all written materials prepared during the mediation,
presumably including the alleged revocation of the post-
nuptial agreement, would remain confidential and were
to be used solely in an effort to obtain a complete
settlement of all terms, which never occurred. In addi-
tion to the alleged revocation agreement, a proposed
parenting plan . . . was also [drafted] and utilized
solely in that regard, although it was never approved
by the court.’’ (Citations omitted.) The court also found
that the defendant had relied on ‘‘the wording on [Seg-
all’s] website . . . that he . . . could withdraw from
the mediation at any time without sacrificing any of his
rights, including those previously negotiated, drafted
and included in the postnuptial agreement. As such,
[Segall] misrepresented the efficacy and use of the pur-
ported revocation agreement.’’ (Citation omitted.)
Because of its conclusion that the revocation agree-
ment was unenforceable, the trial court also was
required to determine the enforceability of the parties’
postnuptial agreement. With the exception of one provi-
sion that the trial court found to be severable,8 the
court concluded that that postnuptial agreement was
enforceable. Before doing so, the trial court identified
all of the criteria, as spelled out in Bedrick, that must
be met before a postnuptial agreement may be found
to be enforceable, including the requirements that the
agreement was fair and equitable at the time of execu-
tion and not unconscionable at the time of dissolution.
The trial court then found that, ‘‘prior to finalizing the
[postnuptial agreement], the parties revealed their
entire personal and joint assets and liabilities to one
another, and each provided the other with a full, com-
plete and current financial affidavit. In addition, both
parties had independent legal counsel during the negoti-
ation, pendency and execution of the agreement. Both
parties signed the agreement, and both signatures were
witnessed by two independent parties. Both parties
. . . have doctoral, anticipated masters, and under-
graduate college degrees, and, as such, understood their
rights and obligations under the terms of the [postnup-
tial agreement]. There is no evidence of undue influ-
ence, fraud, coercion, duress or similar defect concern-
ing the execution of the [postnuptial agreement].’’
In light of these findings, the trial court ordered the
defendant to pay alimony to the plaintiff in the amount
of $350,000 per year, or $29,167 per month, in accor-
dance with the terms of the postnuptial agreement. The
trial court further ordered that ‘‘[t]he defendant . . .
pay child support to the plaintiff in the amount of $676
per week, in accordance with the state . . . child sup-
port guidelines.’’ The trial court also ordered the defen-
dant to ‘‘pay the reasonable costs of each child’s private
day school tuition and books’’ and ‘‘90 percent . . . of
the cost of any and all uninsured and/or unreimbursed
medical [expenses] for each of the parties’ two minor
children.’’ Finally, in accordance with the parties’ post-
nuptial agreement, the court awarded the plaintiff
$1,326,849, which represented one third of the parties’
aggregate net worth as defined by the agreement.
On February 8, 2017, the court amended the child
support orders, explaining that, although the presump-
tive minimum child support amount is $708 per week
and the presumptive order under the child support
guidelines would require the defendant to pay 100 per-
cent of the children’s unreimbursed medical expenses,
there are three valid deviation criteria applicable in this
case. The court identified these criteria as follows: (1)
‘‘the plaintiff’s earnings capacity is an annual, pretax
amount of $77,500’’; (2) ‘‘the order of shared physical
custody’’; and (3) ‘‘the defendant’s private school educa-
tion obligations to the minor children.’’
On appeal,9 the plaintiff claims that the trial court
incorrectly concluded that the parties’ purported agree-
ment to revoke the postnuptial agreement was unen-
forceable and that their postnuptial agreement was
enforceable. The plaintiff also claims that the trial court
incorrectly awarded the parties joint legal and physical
custody of their minor children with the defendant hav-
ing final decision-making authority. We reject each of
these contentions, which we discuss in turn.10
I
We first address the plaintiff’s contention that the trial
court incorrectly concluded that the parties’ written
agreement purporting to revoke their postnuptial agree-
ment was unenforceable. The plaintiff asserts that the
trial court’s heightened scrutiny of that agreement was
unwarranted because, unlike a postnuptial agreement,
which removes the issues of alimony and property divi-
sion from the court’s purview, the revocation of a post-
nuptial agreement returns those issues to the court for
adjudication, thereby placing the parties ‘‘on equal foot-
ing’’ in any future dissolution action. The plaintiff fur-
ther claims that, even if the revocation agreement was
properly the subject of special scrutiny, the record does
not support the trial court’s refusal to enforce it for the
reasons articulated by the court, namely, because the
defendant did not have access to an attorney prior to
its execution and because the defendant was led to
believe, and did believe, that the revocation agreement
was not binding on the parties if they were unable
to reach a mediated settlement of their dispute. The
plaintiff finally argues that, even if the trial court’s find-
ings are supported by the record, the court incorrectly
relied on parol evidence to ascertain the import of the
parties’ revocation agreement. The defendant, for his
part, maintains that the trial court properly applied spe-
cial scrutiny to the parties’ agreement but that, even
without such scrutiny, the trial court’s refusal to enforce
the agreement is supported by ordinary contract princi-
ples. We agree with the defendant that the trial court’s
decision is sustainable under established contract law.
As the trial court observed in its memorandum of
decision, there is no case law in this state—or, to our
knowledge, in any other jurisdiction— identifying the
legal standard by which the validity of an agreement
purporting to revoke a postnuptial agreement is to be
evaluated. This dearth of authority is undoubtedly due
to the fact that, unlike premarital agreements, which
are common, postnuptial agreements are not. Rarer still
are agreements between spouses purporting to revoke
a postnuptial agreement. For purposes of the present
case, however, it is unnecessary for us to decide
whether an agreement to revoke a postnuptial agree-
ment should be subject to the same heightened scrutiny
as the postnuptial agreement itself. We need not do so
in light of the fact that the trial court’s finding that
the defendant signed the revocation agreement only
because he reasonably understood that it would not
be binding unless the parties reached a full and final
settlement of the disputed issues constitutes a valid
basis for sustaining that court’s judgment under ordi-
nary contract principles.
As we previously discussed, the trial court found
that the defendant signed the revocation agreement in
reliance on the representations on Segall’s website con-
cerning the purpose and scope of mediation, statements
contained in Segall’s December 20, 2013 e-mail to the
parties, and the provisions of paragraph 4 (a) of the
parties’ mediation agreement. As the trial court
explained, these materials together permitted the defen-
dant to withdraw from the mediation at any time with-
out sacrificing any of his rights, including his rights
under the parties’ 2012 postnuptial agreement, and they
further provided that all writings prepared during the
mediation, including the parties’ revocation agreement,
were confidential and for use solely and exclusively to
facilitate a complete settlement of their pending case,
which, of course, never occurred. Thus, the defendant’s
purported understanding that he could terminate the
mediation at any time, and that, if he did, the revocation
agreement would not be enforceable, was fully sup-
ported by the representations on Segall’s website, in
the December 20, 2013 e-mail, and in the mediation
agreement. The trial court’s finding that the defendant
did, in fact, rely on these representations is itself amply
supported by the defendant’s testimony.
As we also noted previously, the trial court couched
its findings in terms of misrepresentation. More specifi-
cally, the court stated that Segall had ‘‘misrepresented
the efficacy and use of the purported revocation agree-
ment,’’ evidently because Segall failed to clarify that,
despite the aforementioned representations to the con-
trary, the revocation agreement was binding on the
parties even if they ultimately were unsuccessful in
reaching a mediated settlement of their case. We are
not persuaded, however, that principles of misrepresen-
tation provide the proper lens through which to view the
trial court’s underlying factual findings. It is apparent,
rather, that, in light of the representations on which
the plaintiff relied in entering into the revocation agree-
ment, the agreement was not enforceable unless the
parties successfully mediated the disputed issues. Put
differently—in terms well established in contract law—
a full and final resolution of those issues was a condition
precedent to the enforceability of the revocation agree-
ment. See, e.g., Southport Congregational Church—
United Church of Christ v. Hadley, 320 Conn. 103, 113,
128 A.3d 478 (2016) (‘‘[a] condition precedent is a fact
or event [that] the parties intend must exist or take
place before there is a right to performance’’ (internal
quotation marks omitted)); Blumberg Associates
Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., 311 Conn. 123, 180–81 n.50, 84 A.3d 840 (2014)
(‘‘conditions precedent to the formation of a contract
involve issues of offer and acceptance [that] precede
and determine the formation of a contract’’ (internal
quotation marks omitted)); Luttinger v. Rosen, 164
Conn. 45, 48, 316 A.2d 757 (1972) (‘‘[i]f the condition
precedent is not fulfilled the contract is not enforce-
able’’); McIsaac v. Hale, 104 Conn. 374, 379, 132 A. 916(1926) (‘‘[a] condition precedent is one [that] must be
performed before the agreement of the parties becomes
a valid and binding contract’’). Moreover, in determining
whether performance of the revocation agreement was
predicated on the occurrence of a condition precedent,
namely, the parties’ successful mediation of their dis-
pute, the trial court was free to credit the defendant’s
testimony. See, e.g., Bender v. Bender, 292 Conn. 696,
729, 975 A.2d 636 (2009) (‘‘[t]o the extent that there
was conflicting testimony as to whether the parties
. . . had agreed to . . . a condition precedent to the
agreement becoming a valid contract, the trial court
was entitled to credit the testimony of the plaintiffs
over that of the defendants concerning that matter’’).
Because the evidence supports the trial court’s conclu-
sion that the enforceability of the revocation agreement
was conditioned on the parties reaching a successful
resolution of the case, and because it is undisputed that
no such resolution was ever reached, the court correctly
determined that the revocation agreement was not
enforceable against the defendant over his objection.
The plaintiff challenges the trial court’s determina-
tion that the revocation agreement was not enforceable
on two grounds. First, she contends that the trial court’s
reliance on the representations on Segall’s website, in
Segall’s December 20, 2013 e-mail to the parties and in
the mediation agreement for the purpose of ascertaining
the defendant’s understanding and intent with respect
to the revocation agreement violates the parol evidence
rule. The plaintiff further argues that the trial court’s
determination regarding the defendant’s understanding
that the revocation agreement was not binding if the
parties did not reach a final settlement agreement is
not supported by the evidence. We disagree with
both claims.
With respect to the plaintiff’s first contention, it is
well established that ‘‘the parol evidence rule is not a
rule of evidence, but a substantive rule of contract law’’
that bars the use of extrinsic evidence to vary the terms
of an otherwise plain and unambiguous contract. (Inter-
nal quotation marks omitted.) Heyman Associates No.
1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 779–80,
653 A.2d 122 (1995). The rule does not prohibit the use
of extrinsic evidence for other purposes, however, such
as to prove mistake, fraud or misrepresentation in the
inducement of the contract. See, e.g., Sims v. Honda
Motor Co., 225 Conn. 401, 416, 623 A.2d 995 (1993)
(‘‘[t]he parol evidence rule . . . is not absolute . . .
but admits of various exceptions, some of which are
based on equitable considerations’’); Paiva v. Vanech
Heights Construction Co., 159 Conn. 512, 521, 271 A.2d
69 (1970) (‘‘[t]he parol evidence rule has no application
[when] there has been fraud in the inducement of the
contract, and parol evidence is ordinarily admissible
to prove fraudulent misrepresentations’’); Warman v.
Delaney, 148 Conn. 469, 474, 172 A.2d 188 (1961) (parol
evidence was properly admitted because proponent of
such evidence was ‘‘not seeking to add to, subtract from
or alter the terms of the written contract itself’’ but,
rather, was seeking to establish ‘‘material misrepresen-
tation in the inducement of the contract’’).
The rule also does not prevent a party from using
extrinsic evidence to establish the existence of a condi-
tion precedent to the formation of a contract. See, e.g.,
Cohn v. Dunn, 111 Conn. 342, 346, 149 A. 851 (1930)
(‘‘[a] collateral agreement that the writing is not to take
effect until the happening of some other event . . .
may . . . be proved by parol [evidence]’’). As we
explained long ago, ‘‘[t]he rule . . . is, that [one] may
show that a writing purporting to be a contract never
came into existence as a contract, or has ceased to be
a contract, and [this] may [be] show[n] . . . by evi-
dence outside of the writing. This . . . rule is not an
exception to the [parol evidence rule or] an infringe-
ment of it.’’ Burns & Smith Lumber Co. v. Doyle, 71
Conn. 742, 745, 43 A. 483 (1899). ‘‘The practical distinc-
tion between the two rules . . . is that evidence to
vary the terms of an agreement in writing is not admissi-
ble, but evidence to show that there is not an agreement
at all is admissible.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 745–46. Accordingly, the trial
court correctly considered parol evidence to evaluate
the defendant’s claim that the revocation agreement
was not binding in the absence of a final settlement
agreement.11
Nor do we agree with the plaintiff that the trial court’s
interpretation of that evidence and its finding that the
defendant relied on it were incorrect as a matter of
law. As we previously explained, Segall’s website char-
acterized mediation as ‘‘entirely voluntary’’; (emphasis
omitted); and stated further that either party ‘‘can leave
mediation at any time, without sacrificing any of [his
or her] rights.’’ (Emphasis added.) In his December 20,
2013 e-mail to the parties, Segall stated that, even
though he could and would draft a revocation agree-
ment at the parties’ request, such an agreement was
not necessary because the parties’ mediated resolution
of the case would ‘‘effectively override’’ the postnuptial
agreement. Although this statement is explicit as to why
a revocation agreement would be unnecessary if the
parties were to reach a mediated settlement of their
case, Segall’s failure to explain that such an agreement
would have materially affected the parties’ financial
relationship in the event that they failed to resolve the
case strongly suggests that Segall himself understood
that the agreement also would not be binding if the
parties did not reach a settlement. Finally, the mediation
agreement expressly provided that the parties could
terminate mediation ‘‘at any time’’ and that both sides
‘‘agree to keep confidential all statements made during
the mediation, as well as all written, photographic, elec-
tronic or printed material and documents prepared . . .
during the mediation . . . . This agreement regarding
confidentiality shall pertain to all circumstances,
including but not limited to any civil and criminal
proceedings.’’ (Emphasis added.) The plaintiff’s con-
tention to the contrary notwithstanding, we agree with
the trial court’s interpretation of this evidence as enti-
tling the defendant, irrespective of the existence of the
revocation agreement, to walk away from mediation at
any time without sacrificing any of his rights under the
postnuptial agreement.12 Furthermore, as we previously
indicated, the trial court had every right to credit the
defendant’s testimony that he understood and relied
on these representations in deciding to enter into the
revocation agreement. Accordingly, we agree with the
defendant that the revocation agreement was unen-
forceable once he elected to terminate mediation with-
out reaching a resolution of the parties’ dispute.13
II
We next address the plaintiff’s claim that the trial
court incorrectly determined that the parties’ postnup-
tial agreement was enforceable because it was fair and
equitable at the time of execution and not unconsciona-
ble at the time of dissolution, as required by Bedrick.
In support of her contention, the plaintiff maintains,
contrary to the determination of the trial court, that
the agreement was not fair and equitable at the time
of execution, primarily because (1) she signed it under
duress, after the defendant threatened to divorce her
if she refused to do so, and (2) the agreement’s terms are
both complex and prolix. The plaintiff further contends
that enforcement of the agreement would be unconscio-
nable because the share of the marital estate allocated
to the defendant under the agreement is ‘‘grossly dispro-
portionate’’ to what the plaintiff otherwise would be
awarded. We are not persuaded by these claims.14
As we previously indicated, the trial court, in conclud-
ing that the postnuptial agreement was fair and equita-
ble, expressly found that there was no ‘‘undue influence,
fraud, coercion, duress or similar defect’’ concerning
the execution of the agreement. The plaintiff disputes
this finding, arguing that it is unsupported in light of
what she characterizes as her uncontradicted testimony
that she signed the postnuptial agreement under duress.
Even if we were to agree with the plaintiff that the
defendant failed to adduce evidence directly contradict-
ing her testimony in this regard, the trial court was not
bound to accept that testimony as true. As this court
previously has explained, ‘‘[i]n evaluating [uncontra-
dicted] testimony, the trial court must assess the credi-
bility of the testifying witness and consider the presence
or absence of corroborating evidence. Since the trial
court as the finder of fact is uniquely competent to
determine the credibility and weight to be accorded to
evidence, the scope of our review of the trial court’s
decision to accept or reject the [witness’] uncontra-
dicted testimony is limited. After considering the total-
ity of the record in the light most favorable to sustaining
the trial court’s factual conclusions, we will disturb the
trial court’s findings only if we determine that they are
clearly erroneous.’’ Bieluch v. Bieluch, 199 Conn. 550,
555–56, 509 A.2d 8 (1986). The plaintiff has failed to
make such a showing. Because the trial court was able
to assess the plaintiff’s credibility firsthand—and
expressly found her credibility to be lacking—we have
no reason to question the trial court’s finding that,
despite her testimony to the contrary, the plaintiff
entered into the agreement voluntarily.
It bears emphasis, moreover, that the plaintiff’s testi-
mony claiming duress did not go unchallenged by the
defendant. For example, article XVIII of the postnuptial
agreement expressly provides that ‘‘[t]he [plaintiff]
acknowledges that she has carefully read this [a]gree-
ment, that she has given due consideration to the
[a]greement and that [the] [a]greement is in all respects
fair and equitable, that it is being entered into volunta-
rily, and that it is not the result of any duress or undue
influence exercised by either party on the other. . . .
The [plaintiff] further acknowledges that this [a]gree-
ment was prepared at her instigation and signed as a
result of her insistence.’’ Considering the entirety of
the evidence, the trial court reasonably concluded that
the plaintiff’s decision to enter into the postnuptial
agreement was voluntary and not the product of duress.
We also reject the plaintiff’s contention that the agree-
ment was unfair and inequitable at the time of execution
because it is complicated and spans thirty-five pages.
Although the length and complexity of a postnuptial
agreement comprise one of many factors courts may
consider in evaluating the enforceability of such an
agreement; Bedrick v. Bedrick, supra, 300 Conn. 705;
that factor is relevant only insofar as it bears on the
question of whether the parties understood the agree-
ment’s terms at the time of execution. In the present
case, the evidence fully supports the trial court’s finding
that the plaintiff understood her rights and obligations
under the agreement notwithstanding its length and
complexity. The plaintiff, like the defendant, is highly
educated, and holds a PhD in mechanical and nuclear
engineering from the University of California, Berkeley.
In addition, the plaintiff had independent legal counsel
to advise her during the negotiation and execution of
the postnuptial agreement. Finally, the agreement itself
provides that ‘‘[t]his [a]greement was drafted coopera-
tively by the parties’ counsel (in consultation with the
parties)’’ and that ‘‘both [parties] and their respective
counsel have had a full and fair opportunity to negotiate
and review the terms [of the agreement] and to contrib-
ute to the substance and form of this [a]greement.’’
Finally, the agreement provides that ‘‘[b]oth parties
hereby jointly and severally acknowledge their com-
plete understanding of [the] legal and other effects of
this [a]greement.’’ The plaintiff has provided no expla-
nation as to why, in light of these facts, the trial court’s
finding should be disturbed, and we are aware of none.
We also disagree with the plaintiff that the trial court
incorrectly determined that the postnuptial agreement
was not unconscionable at the time of dissolution. The
plaintiff’s claim of unconscionability is predicated on
the fact that the postnuptial agreement excluded from
the definition of ‘‘joint property’’ any interest the parties
had ‘‘in any deferred, defined contribution, defined ben-
efit or other pension, retirement or profit sharing plan,’’
as well as certain other employment related assets that
had not yet vested and/or were subject to forfeiture or
clawback.15 The plaintiff contends that, if these assets
had been included as joint property under the agree-
ment, her share of the marital estate would have been
substantially more than $1,326,849, the amount she ulti-
mately was awarded. As we have explained, however,
‘‘[u]nfairness or inequality alone does not render a post-
nuptial agreement unconscionable; spouses may agree
on an unequal distribution of assets at dissolution. [T]he
mere fact that hindsight may indicate [that] the provi-
sions of the agreement were improvident does not ren-
der the agreement unconscionable. . . . Instead, the
question of whether enforcement of an 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 unconscionable.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Bedrick v. Bedrick, supra, 300 Conn. 705–706. The plain-
tiff, however, has not identified a single change of cir-
cumstance—in her life, in the defendant’s life or in the
lives of their children—that would warrant the conclu-
sion that enforcement of the parties’ postnuptial agree-
ment would be unconscionable. But cf. id., 707 (enforce-
ment of postnuptial agreement was unconscionable
because economic circumstances of parties had
changed dramatically since execution of agreement
eighteen years earlier). We therefore conclude that the
trial court correctly determined that the postnuptial
agreement was not unconscionable at the time of disso-
lution.
III
The plaintiff finally claims that the trial court improp-
erly based its custody orders on the testimony of
Amendola, the guardian ad litem for the parties’ chil-
dren. The plaintiff contends that the trial court should
not have considered Amendola’s testimony in determin-
ing the best interests of the children because, at trial,
Amendola stated that she had not seen the children in
two years. The defendant responds that it is clear from
the record that the trial court based its custody orders
on a careful evaluation of the all of the evidence and
in consideration of the various relevant factors set forth
in General Statutes § 46b-56 (c).16 The defendant further
contends that there is nothing in the record to indicate
that the trial court based its custody orders on Amendo-
la’s testimony but that, even if it did, it was well within
the court’s discretion to do so. We agree with the
defendant.
The following additional facts are relevant to our
resolution of this claim. In September, 2014, the court
appointed Amendola as guardian ad litem for the par-
ties’ children, who were eight and six years old at the
time. Amendola met with the children only once, shortly
after her appointment. At trial two years later, she rec-
ommended that the parties share joint legal and physical
custody of the children with the defendant having final
decision-making authority. Amendola’s recommenda-
tion was founded on her frequent and ongoing phone
and e-mail correspondence with the parties; her review
of the relevant pleadings, court transcripts, and corre-
spondence between the parties; her attendance at depo-
sitions and court proceedings; her conversations with
and review of reports prepared by Adamakos, the court-
appointed psychologist who performed the forensic
custody evaluation; and information obtained from the
children’s schools. Amendola further testified that,
although she was in frequent contact with the plaintiff
and the defendant, she chose to meet with the children
themselves only once due to their tender years and to
keep them as far removed from their parents’ marital
conflicts as possible. Amendola explained that she
relied on Adamakos to keep her apprised of the chil-
dren’s progress rather than meet with them directly.
The record reveals that Adamakos met with each of
the children individually for a period of one hour on
November 25, 2015, December 9, 2015, June 6, 2016,
and June 23, 2016. He also conducted home visits during
which he observed the children’s interaction with their
parents. On the basis of these visits and observations,
Adamakos prepared two custody evaluation reports,
dated January 10, 2016, and July 25, 2016, respectively,
which were entered into evidence at trial. In his reports,
Adamakos described the children as extremely well-
adjusted and noted that they appeared to enjoy an
equally close and loving relationship with each of
their parents.
At trial, Adamakos recommended that the parties
share joint legal custody and that the children primarily
reside with the plaintiff and spend alternating weekends
from Thursday evening to Sunday evening with the
defendant, as well as Thursday after school until Friday
morning during weeks that the children would not be
spending the upcoming weekend with the defendant.
He also recommended that the parents engage the ser-
vices of a coparent coordinator ‘‘to help [them] make
decisions [and] break a deadlock, if you will . . . .’’
When asked whether he was aware that the defendant
had arranged with his employer to adjust his work
schedule so he could be more available for the children,
Adamakos testified that, ‘‘if [the defendant is] more
available, he’s certainly a capable parent, and children
benefit from both parents, so I would think that maybe
more time than I recommended would be appropriate.’’
With respect to the parties’ ability to coparent, Ada-
makos agreed with Amendola’s assessment that ‘‘it’s
difficult for the plaintiff to consider [the defendant’s]
perspective’’ and ‘‘that anger and resentment have com-
promised [the plaintiff’s] ability to empathize with [the
defendant]’’ in matters pertaining to the children. Ada-
makos further testified that the plaintiff, whom he
described as ‘‘controlling’’ and ‘‘rigid,’’ ‘‘does not want
to have to negotiate with the defendant over anything
that has to do with parenting,’’ that she has ‘‘egocentric
qualities about how she makes decisions,’’ which have
‘‘marginalized’’ the defendant, that there are times
‘‘when the plaintiff . . . intentionally interferes with
[the defendant’s] time with the children,’’ that the plain-
tiff ‘‘sees herself as the authority with respect to the
children,’’ and that the plaintiff ‘‘is blind . . . to under-
standing the downside, the negative consequences of
[her behavior] . . . .’’
On the basis of this and other testimony, the trial
court awarded the parties joint legal and physical cus-
tody of their children, with the defendant having final
decision-making authority. In support of its decision,
the court found, among other things, that, although both
the plaintiff and the defendant are good parents, the
defendant has ‘‘more insight into the children’s develop-
mental needs, activities, education and environment,’’
and has structured his work schedule so that he has
additional time off to be with the children during the
week.
‘‘This court has consistently held in matters involving
child custody . . . that while the rights, wishes and
desires of the parents must be considered it is neverthe-
less the ultimate welfare of the child [that] must control
the decision of the court. . . . In making this determi-
nation, the trial court is vested with broad discretion
which can . . . be interfered with [only] upon a clear
showing that that discretion was abused.’’ (Citations
omitted; internal quotation marks omitted.) Ridgeway
v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980).
Thus, a trial court’s decision regarding child custody
‘‘must be allowed to stand if it is reasonably supported
by the relevant subordinate facts found and does not
violate law, logic or reason.’’ (Internal quotation marks
omitted.) Gallo v. Gallo, 184 Conn. 36, 44, 440 A.2d 782(1981). Under § 46b-56 (c), the court, in determining
custody, must consider the best interests of the child
and, in doing so, may consider, among other factors,
one or more of the sixteen factors enumerated in the
provision.
‘‘[T]he authority to exercise the judicial discretion
[authorized by § 46b-56] . . . is not conferred [on] this
court, but [on] the trial court, and . . . we are not
privileged to usurp that authority or to substitute our-
selves for the trial court. . . . A mere difference of
opinion or judgment cannot justify our intervention.
Nothing short of a conviction that the action of the trial
court is one [that] discloses a clear abuse of direction
can warrant our interference.’’ (Internal quotation
marks omitted.) Gallo v. Gallo, supra, 184 Conn. 44–45;
see also Yontef v. Yontef, 185 Conn. 275, 279, 440 A.2d
899 (1981) (‘‘[i]t is a rare case in which a disappointed
litigant will be able to demonstrate abuse of a trial
court’s broad discretion in [child custody] matters’’).
The plaintiff’s sole contention with respect to the
custody orders is that, ‘‘[b]ecause [Amendola] did not
have frequent or recent contact with the children and
because she did not do an investigation into the chil-
dren’s best interest[s], the trial court should not have
adopted her recommendations.’’ To be sure, Amendola
had minimal personal contact with the children during
the pendency of the dissolution action, which she appar-
ently believed was in their best interests. There is noth-
ing in the record to suggest, however, that she did
not conduct an investigation into the children’s best
interests. To the contrary, as we previously noted,
Amendola testified that, from the time of her appoint-
ment as guardian ad litem until the time of trial, she
was in regular communication with the parties, she read
Adamakos’ reports and consulted with him about his
findings, and she attended all court proceedings and
depositions. In light of the foregoing, the plaintiff’s
assertion that Amendola conducted no investigation is
without merit.
The plaintiff contends, nonetheless, that it was
improper for the trial court even to consider Amendola’s
recommendations in light of her testimony that she had
not seen the children in two years. We rejected a nearly
identical claim in Blake v. Blake, 207 Conn. 217, 541
A.2d 1201 (1988), and our reason for doing so is fully
applicable to the present case. In Blake, the defendant,
Benson P. Blake, claimed that the trial court, in deciding
custody in that case, improperly had considered the
expert opinions of the court-appointed custody evalua-
tor and a family relations officer, whose views were
based on information they had obtained between eight
and sixteen months before the custody hearing. See id.,
224. In rejecting Blake’s claim, we acknowledged that
a trial court, in making a custody determination, is
bound to consider ‘‘the present best interests of the
child at the time of the custody determination.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id. We explained, however, that ‘‘[t]he delay
between [the witnesses’] examination of each child and
their testimony at the custody hearing simply affects
the weight of their testimony rather than its admissibil-
ity.’’ Id., 225. We further explained that the ‘‘standard
of review in domestic relations cases is a very narrow
one. We will not reverse a trial court’s rulings with
regard to custody . . . unless the court incorrectly
applied the law or could not reasonably have concluded
as it did.’’ Id. Finally, we observed that Blake ‘‘had a
full opportunity at the custody hearing to point out any
deficiencies concerning [the witnesses’] examination
of the children, and ha[d] failed to demonstrate any
substantial prejudice as a result of the delay between
the time [they] interviewed each child and when cus-
tody was determined.’’ Id.As in Blake, the plaintiff in the present case had a
full and fair opportunity to cross-examine Amendola
about any possible deficiencies concerning the time she
had spent with the children and how, if at all, any such
deficiencies impaired her ability to form a legitimate
opinion as to their best interests.17 The plaintiff has also
failed to demonstrate that Amendola’s limited contact
with the children prejudiced the plaintiff in any way.
Indeed, Adamakos, who spent far more time with the
children, largely agreed with Amendola’s recommenda-
tions. Specifically, Adamakos agreed with Amendola
that both of the parties were exceedingly capable and
loving parents and should have joint legal custody of the
children. Although he recommended that the children
reside primarily with the plaintiff, it appears that that
recommendation was based on his perception that the
defendant’s work schedule prevented him from spend-
ing as much time with the children as the plaintiff. When
informed that the defendant had arranged with his
employer to be more available to the children, Ada-
makos responded that the defendant is ‘‘certainly a
capable parent . . . so I would think that maybe more
time than I recommended would be appropriate.’’
Finally, Adamakos agreed with Amendola that the plain-
tiff’s controlling nature and refusal to involve the defen-
dant in decisions affecting the children were highly
detrimental to the defendant’s relationship with the chil-
dren. Whereas Amendola recommended that the defen-
dant be given final decision-making authority over the
children, Adamakos recommended that that authority
be given to a court-appointed ‘‘coparent coordinator.’’
Thus, in the end, the trial court’s custody determination
came down to a determination of whether the plaintiff,
the defendant, or a coparent coordinator should have
final decision-making authority when the parties are
unable to agree about the children. In light of the trial
court’s finding that the defendant has more insight into
‘‘the children’s developmental needs, activities, educa-
tion and environment,’’ it was hardly an abuse of discre-
tion for the court to conclude that it was most appro-
priate that the defendant be granted the right to exercise
final decision-making authority.
The judgment is affirmed.
In this opinion the other justices concurred.
1
A postnuptial agreement is an agreement entered into during marriage,
setting forth each spouse’s legal rights and obligations upon death or divorce.
See, e.g., Bedrick v. Bedrick, 300 Conn. 691, 693 n.1, 17 A.3d 17 (2011). The
term ordinarily refers to an agreement between spouses at a time when
they plan to remain married and neither separation nor divorce is imminent.
See id.2
At the time of the parties’ trial in 2016, the plaintiff and the defendant
were 40 and 38 years of age, respectively.
3
We note that, prior to trial, the defendant obtained an order closing the
courtroom for certain testimony and sealing certain exhibits, records and
documents offered into evidence at trial, including, inter alia, the terms and
conditions of the defendant’s employment with Two Sigma Investments.
The defendant’s base salary and any findings of fact with respect to the
defendant’s income, however, were not covered by the order.
4
Paragraph 4.11 (a) of the parties’ postnuptial agreement defines ‘‘aggre-
gate net worth’’ as the ‘‘value of the parties’ [j]oint [p]roperty . . . less (1)
the aggregate amount of the separate liabilities of the [parties] . . . (2) the
sum of all taxes of any kind [that] would be owing in the event of a hypotheti-
cal immediate liquidation of all [j]oint [p]roperty as of the date of the
[divorce] decree . . . (3) the sum of all taxes of any kind [that] would be
owing in the event of a hypothetical immediate exercise of all vested stock
options held by the parties or either of them, and the immediate sale of the
resulting shares of stock as of the date of the [divorce] decree . . . and
(4) the sum of all taxes of any kind [that] would be owing with respect to
any vested [employment related] assets (other than options) held by the
parties or either of them in the hypothetical event that said vested [employ-
ment related] assets were fully taxable to the party in question as of the
date of [t]he [divorce] [d]ecree.’’ (Emphasis in original.)
5
The revocation agreement provides in relevant part: ‘‘Each of the [plain-
tiff] and the [defendant] declare[s] and acknowledge[s] that each has had
independent counsel of his/her own selection. Each of the [plaintiff] and the
[defendant] further declare[s] and acknowledge[s] that each was afforded
a reasonable and ample opportunity to consult with his or her counsel prior
to the execution of this [a]greement. The [plaintiff] has been represented
by Attorney Andrew Nemiroff, and the [defendant] has been represented
by Attorney Wayne Effron.’’ In fact, contrary to the terms of the agreement,
Effron neither represented nor otherwise advised the defendant either with
respect to the parties’ mediation agreement or with respect to the revoca-
tion agreement.
6
It bears noting that, under the defendant’s view of the revocation, it was,
in effect, legally superfluous because it would be unenforceable if the parties
did not reach a mediated resolution of their case, and, if they did resolve
the case, the parties’ settlement agreement would, as Segall observed in his
December 20, 2013 e-mail to the parties, ‘‘effectively override’’ the revocation
agreement. As we previously discussed, it is apparent that the defendant
agreed to revoke the postnuptial agreement only because the plaintiff
requested such a revocation and the defendant believed that accommodating
the plaintiff in that regard might serve to promote an amicable resolution
of their case.
7
The enforcement of postnuptial agreements is subject to heightened
scrutiny because of the special nature of the marital relationship. As we
have explained, ‘‘[t]he circumstances surrounding [postnuptial] agreements
. . . 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.) Bedrick v. Bedrick, supra, 300 Conn. 701. More-
over, ‘‘the spouses to a postnuptial agreement . . . in contracting with one
another . . . are certainly less cautious than they would be with an ordinary
contracting party. With lessened caution comes greater potential for one
spouse to take advantage of the other.’’ Id., 703.
8
That provision, paragraph 4.9 (b) of the postnuptial agreement, provides
that, if either party seeks to invalidate a part of the agreement or seeks to
recover property or alimony in contravention of the agreement, that party
shall pay all of the attorneys’ fees and costs incurred by the other party in
defending his or her rights under the agreement. The trial court found the
provision to be ‘‘unfair, inequitable and unconscionable’’ and, therefore,
unenforceable because it sought ‘‘to add an onerous financial penalty to
either party who contests the efficacy of the postnuptial agreement . . . .’’
This conclusion of the trial court has not been challenged on appeal.
9
The plaintiff 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.
10
We note that the guardian ad litem has filed a brief in support of the
position of the defendant seeking affirmance of the trial court’s order with
respect to the issue of custody.
11
We note that the parol evidence rule did not bar consideration of extrin-
sic evidence for the purpose of determining whether, as the trial court
concluded, Segall had ‘‘misrepresented the efficacy and use’’ of the revoca-
tion agreement by virtue of his failure to clarify that the representations on
his website, in his December 20, 2013 e-mail and in the mediation agreement
were not intended to create a condition precedent to the revocation agree-
ment’s enforceability, ‘‘As a matter of common law, a party to a contract
. . . may rescind that contract and avoid liability thereunder if that party’s
consent to the contract was procured either by the other party’s fraudulent
misrepresentations, or by the other party’s nonfraudulent material misrepre-
sentations.’’ Munroe v. Great American Ins. Co., 234 Conn. 182, 188 n.4,
661 A.2d 581 (1995). Likewise, misrepresentations by one who is not a party
to the contract may also render the contract voidable by the party misled
by the misrepresentation. Specifically, ‘‘[i]f a party’s manifestation of assent
is induced by either a fraudulent or a material misrepresentation by one
who is not a party to the transaction upon which the recipient is justified
in relying, the contract is voidable by the recipient, unless the other party
to the transaction in good faith and without reason to know of the misrepre-
sentation either gives value or relies materially on the transaction.’’ 1
Restatement (Second), Contracts § 164 (2), p. 445 (1981); see also, e.g.,
Kenda Corp. v. Pot O’Gold Money Leagues, Inc., 329 F.3d 216, 224 (1st Cir.
2003) (‘‘[p]rinciples of contract law permit rescission of a contract even
when the misrepresentations at issue were made by a [nonparty] to the
contract’’). In the present case, there is no evidence that the plaintiff gave
anything of value in exchange for the defendant’s agreement to revoke the
postnuptial agreement. Indeed, the plaintiff herself testified that no new
promises, undertakings or consideration was exchanged in connection with
the agreement. There also is no evidence that the plaintiff materially changed
her position in reliance on the agreement, which, by her own admission,
did no more than purport to restore to the courts the authority to allocate and
distribute the parties’ marital estate in the event of a divorce. Accordingly,
the trial court’s decision would be sustainable even if we, like the trial court,
were to treat the issue presented as sounding in misrepresentation rather
than one involving a condition precedent.
12
The plaintiff also asserts that the trial court’s findings concerning the
defendant’s understanding as to the unenforceability of the revocation agree-
ment are clearly erroneous because, soon after mediation broke down, the
defendant filed a motion to amend the proposed parenting agreement that
Segall had drafted for the parties to file with the court in order to meet a
case management deadline. The plaintiff argues that, if the defendant had
truly believed that agreements reached during mediation were binding only
if the parties reached a final settlement, ‘‘there would be no point in modi-
fying the proposed parenting plan after the mediation concluded.’’ To the
contrary, the defendant may have filed the motion to amend the proposed
parenting plan simply to obtain a more suitable plan in light of the parties’
changed circumstances, which included, among other things, the defendant’s
decision to move out of the marital home following the termination of
mediation and the plaintiff’s simultaneous decision to return to school as
a full-time student. In any event, the trial court was not required to infer
that the defendant believed that he was bound by the revocation agreement
merely because he filed the motion to amend the proposed parenting plan.
13
Because we conclude that the trial court correctly determined that the
revocation agreement was unenforceable in the absence of a final mediated
settlement agreement, we need not address whether the trial court correctly
concluded that the agreement was unenforceable for the additional reason
that the defendant did not have access to an attorney prior to signing it.
14
We note, preliminarily, that ‘‘we generally review a trial court’s discre-
tionary decision in a domestic relations case using the clearly erroneous
standard of review . . . . [I]n the present case, [however] we must apply
the legal standards described [herein], namely, whether the terms of the
agreement were fair and equitable at the time of execution and not uncon-
scionable at the time of dissolution, to the underlying facts. Accordingly,
the question of whether the agreement was enforceable is a mixed question
of fact and law subject to plenary review.’’ (Citation omitted.) Bedrick v.
Bedrick, supra, 300 Conn. 706.
15
The specific assets that the plaintiff claims should have been included
as joint property are sealed. See footnote 3 of this opinion.
16
General Statutes § 46b-56 (c) provides: ‘‘In making or modifying any
order as provided in subsections (a) and (b) of this section, the court shall
consider the best interests of the child, and in doing so may consider,
but shall not be limited to, one or more of the following factors: (1) The
temperament and developmental needs of the child; (2) the capacity and
the disposition of the parents to understand and meet the needs of the child;
(3) any relevant and material information obtained from the child, including
the informed preferences of the child; (4) the wishes of the child’s parents
as to custody; (5) the past and current interaction and relationship of the
child with each parent, the child’s siblings and any other person who may
significantly affect the best interests of the child; (6) the willingness and
ability of each parent to facilitate and encourage such continuing parent-
child relationship between the child and the other parent as is appropriate,
including compliance with any court orders; (7) any manipulation by or
coercive behavior of the parents in an effort to involve the child in the
parents’ dispute; (8) the ability of each parent to be actively involved in the
life of the child; (9) the child’s adjustment to his or her home, school and
community environments; (10) the length of time that the child has lived
in a stable and satisfactory environment and the desirability of maintaining
continuity in such environment, provided the court may consider favorably
a parent who voluntarily leaves the child’s family home pendente lite in
order to alleviate stress in the household; (11) the stability of the child’s
existing or proposed residences, or both; (12) the mental and physical health
of all individuals involved, except that a disability of a proposed custodial
parent or other party, in and of itself, shall not be determinative of custody
unless the proposed custodial arrangement is not in the best interests of
the child; (13) the child’s cultural background; (14) the effect on the child
of the actions of an abuser, if any domestic violence has occurred between
the parents or between a parent and another individual or the child; (15)
whether the child or a sibling of the child has been abused or neglected,
as defined respectively in section 46b-120; and (16) whether the party satis-
factorily completed participation in a parenting education program estab-
lished pursuant to section 46b-69b. The court is not required to assign any
weight to any of the factors that it considers, but shall articulate the basis
for its decision.’’
17
In support of her claim that the trial court abused its discretion in
considering Amendola’s testimony, the plaintiff relies on O’Neill v. O’Neill,
13 Conn. App. 300, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374(1988). In O’Neil, however, the Appellate Court ordered a new custody
hearing not because the trial court, in determining custody, improperly
considered the testimony of a particular witness but, rather, because the
court had relied entirely on a thirteen month old family relations officer’s
report notwithstanding the officer’s testimony ‘‘that due to the passage of
time he could not competently testify as to whether the parties’ stability
and security had changed since his report.’’ Id., 303. The Appellate Court
explained that the report was not probative of the best interests of the child
at the time of the custody determination; see id.; and that, ‘‘[t]o compound
its error in relying on outdated evidence [that was] not probative of present
parenting abilities, the trial court admitted that it placed great weight on
the [outdated] written report . . . .’’ Id. In contrast to O’Neill, the plaintiff
in the present case does not claim that the trial court’s custody decision
was based on stale, rather than current, information about the parties and
their children.