Tilsen v. Benson ( 2023 )

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JON-JAY TILSEN v. MIRIAM E. BENSON
(SC 20664)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker and Alexander, Js.
Syllabus
The plaintiff appealed from the trial court’s judgment dissolving his marriage
to the defendant, challenging certain of the trial court’s financial orders
and claiming that the trial court had improperly denied his motion to
enforce, as a prenuptial agreement, the terms of the parties’ ketubah,
which is a contract governing marriage under Jewish law. The parties
signed the ketubah shortly before they were married, and it provided
in relevant part that the defendant was to be the plaintiff’s ‘‘wife
according to the laws of Moses and Israel’’ and that they ‘‘agreed to
divorce . . . one another . . . according to Torah law . . . .’’ After
marrying, the plaintiff found employment as a rabbi at a Conservative
synagogue in New Haven, where he served for nearly three decades.
During that time, the defendant, who was educated and trained as an
attorney, worked in the legal and nonprofit fields, but she had not
worked as an attorney since 2015. The defendant, however, was the
primary caregiver to the parties’ children and had numerous responsibili-
ties in connection with her role as the rabbi’s wife. After initiating the
present dissolution action in 2018, the plaintiff moved for an order
confirming that the ketubah was valid and enforceable, and he requested
that any asset division and support orders be entered in accordance with
Hebrew law based on the ketubah’s choice of law provision. According
to the plaintiff, application of such law would result in an equal division
of marital property, excluding individual property acquired through a
gift or bequest not specifically conveyed to the other spouse, and would
preclude alimony or claims against future income. In connection with
the plaintiff’s motion, the parties submitted conflicting affidavits from
various rabbis about alimony and property division under Torah law. The
trial court denied the plaintiff’s motion. Applying the neutral principles
of law approach to determine whether a civil court may consider a
claim implicating a religious institution or practice without violating
the establishment clause of the first amendment to the United States
constitution, which was articulated by the United States Supreme Court
in Jones v. Wolf (443 U.S. 595), the trial court concluded that the first
amendment precluded enforcement of the ketubah’s provisions. The
court reasoned that, in light of the conflicting affidavits, enforcement
of the provisions of the ketubah would require the court to choose
between competing rabbinical interpretations of the requirement that
their divorce should accord with Torah law. During the pendency of
the dissolution proceedings, the plaintiff, who was five years into a
ten year employment contract with the synagogue, renegotiated that
contract for a new, one year contract, pursuant to which he was to
receive a total annual compensation package of $202,100. The syna-
gogue, however, later informed the plaintiff that it would not be renewing
his one year contract, which terminated in August, 2021. The plaintiff
did not search for or intend to seek new employment. In dissolving the
parties’ marriage, the trial court issued several financial orders. The
court found, inter alia, that the plaintiff’s annual gross earning capacity
was $202,100, which was consistent with his most recent compensation
from the synagogue. In light of that and other findings, the trial court
ordered the plaintiff to pay the defendant alimony in the amount of
$5000 per month for a period of fifteen years and precluded him from
seeking a modification based on the defendant’s increased earnings,
unless her annual gross earnings equaled or exceeded $50,000. The court
also awarded the plaintiff sole possession and ownership of the marital
home and 45 percent of the parties’ retirement accounts, and it allowed
the plaintiff to retain his ownership interest in a real estate asset estab-
lished by his family members but required him to pay the defendant 25
percent of the net, after tax amount of any future distributions that he
was to receive from that interest. On the plaintiff’s appeal, held:
1. The plaintiff could not prevail on his claim that the trial court had improp-
erly denied his motion to enforce the provisions of the ketubah on the
ground that doing so would violate first amendment to the United States
constitution:
a. The trial court correctly determined that enforcement of the parties’
ketubah would violate the establishment clause of the first amendment:
The establishment clause generally precludes a court from inquiring into
religious matters, but, under the neutral principles of law doctrine, civil
courts may decide a dispute arising in a religious context so long as the
dispute can be resolved solely by a secular legal analysis that does
not implicate or is not informed by religious doctrine or practice, and,
although a court resolving such a dispute may be required to examine
certain religious documents, it must take special care to scrutinize those
documents in purely secular terms and not to rely on religious precepts
or to resolve a religious controversy.
Given the nature of a ketubah, which resembles a contract but embraces
complex religious undertones and carries spiritual weight, courts have
applied the neutral principles of law doctrine to assess whether the
provisions of a ketubah may be given effect in a dissolution proceeding
without violating the establishment clause’s prohibition against inquiring
into matters of religious faith and doctrine, and this court, after reviewing
the case law from those courts that have addressed the issue, found
most instructive those cases that have applied the neutral principles of
law doctrine in concluding that the first amendment precludes a civil
court’s enforcement of ketubah provisions similar to those in the par-
ties’ ketubah.
In the present case, the parties’ ketubah was facially silent as to each
party’s support obligations in the event of dissolution of their marriage,
the trial court would therefore have been required to determine those
obligations from external sources concerning Jewish law, and the affida-
vits submitted by various rabbis on behalf of the parties offered conflict-
ing opinions regarding such law as it pertains to alimony and property
division, rendering the present case a paradigmatic example of entangle-
ment that runs afoul of the establishment clause, insofar as the trial
court would have been required to discern and enforce what Jewish law
requires with respect to property division and financial support upon
dissolution if it had given effect to the parties’ ketubah.
b. The plaintiff could not prevail on his unpreserved claim that the trial
court’s decision not to enforce the ketubah had violated his rights under
the free exercise clause of the first amendment on the ground that it
prevented him from divorcing according to Jewish law:
In view of the parties’ lack of agreement as to what Jewish law requires
in the present case owing to the breadth and vagueness of the language
in the parties’ ketubah, the trial court, in making a determination as to
what that law requires, would have risked violating the defendant’s free
exercise rights in the name of protecting those of the plaintiff.
Moreover, the trial court did not deny the plaintiff access to the court
or otherwise exact a penalty in connection with his religious beliefs or
practices, but, rather, its decision not to enforce the ketubah simply
meant that the parties’ dissolution would be governed by generally appli-
cable principles of Connecticut law, as expressed in the equitable distri-
bution and alimony statutes (§§ 46b-81 and 46b-82), and parties who
desire specific tenets of their religious beliefs to govern the resolution
of their marital dissolution actions remain free to contract for that relief
via a properly executed antenuptial, postnuptial, or separation agreement
that is specifically worded to express those beliefs in a way that avoids
establishment clause concerns under the neutral principles of law doc-
trine.
2. There was no merit to the plaintiff’s claims that the trial court’s financial
orders were based on a clearly erroneous factual finding regarding his
earning capacity and that the trial court had abused its discretion in
awarding alimony in the amount of $5000 per month for fifteen years and
25 percent of any future distributions in connection with the plaintiff’s
ownership interest in the real estate asset:
a. The trial court’s finding that the plaintiff had a gross earning capacity
of $202,100 was not clearly erroneous:
Under appropriate circumstances, a trial court in a marital dissolution
action may base its financial awards on a party’s earning capacity, which
is an amount that a person can realistically be expected to earn consider-
ing such things as the person’s vocational skills, employability, age and
health, rather than actual earned income, and it is especially appropriate
for the court to consider whether a person has wilfully restricted his or
her earning capacity to avoid support obligations.
In the present case, the trial court’s decision to base the fifteen year
alimony award, at least in part, on the plaintiff’s earning capacity of
$202,100 was supported by the fact that the plaintiff had only recently
become unemployed at the time of dissolution, the lack of any evidence
as to his inability or efforts to obtain employment, and evidence that he
desired to renegotiate the terms of his employment with the synagogue
in order to gain an advantage in the pending dissolution action.
Moreover, there was evidence of the plaintiff’s employability, including
testimony from the president of the synagogue’s board of trustees that
the synagogue initially had no intention of replacing the plaintiff with
another rabbi, and evidence that the plaintiff had declined an offer from
the synagogue that would have allowed him to remain employed in a
limited capacity beyond the end of the renegotiated, one year contract.
Furthermore, in the absence of evidence concerning the plaintiff’s
reduced employability or earning capacity resulting from his age or the
termination of his employment, which the plaintiff failed to proffer, it
was reasonable for the trial court to rely on the plaintiff’s gross compensa-
tion for the final year of his employment with the synagogue as reflected
in the one year contract, insofar as the plaintiff asked to renegotiate the
ten year contract to a one year contract in March, 2020, during the
pendency of the parties’ dissolution action, and insofar as the trial court
specifically declined to credit his testimony that the reason for doing so
was because he believed that it was inappropriate to fix compensation
for longer than a one year period given the uncertainties presented at
that time by the start of the COVID-19 pandemic.
b. The trial court did not abuse its discretion in ordering the plaintiff to
pay to the defendant 25 percent of any future distributions stemming
from his ownership interest in the real estate asset:
Contrary to the plaintiff’s contention that the distributions from the real
estate asset are mere expectancies akin to an inheritance and, thus, not
property subject to division under § 46b-81, the parties had stipulated
that the distributions from that asset were property subject to equitable
distribution, and the trial court’s award of 25 percent of those distribu-
tions to the defendant was consistent with the present division method
of deferred distribution, pursuant to which the trial court determines at
the time of trial the percentage share of the nonliquid assets to which
each spouse is entitled, and that award was not an abuse of discretion
when it was viewed in the context of the court’s other financial orders.
c. The trial court did not improperly based its alimony award on the
plaintiff’s gross earning capacity rather than on his available net income:
Although it is well settled that a court must base child support and
alimony awards on the available net income of the parties, and not on
gross income or gross earning capacity, this court concluded that a trial
court’s failure to state explicitly that an award has been based on net
income, or its reference to a party’s gross income or gross earning
capacity, does not, in and of itself, require reversal if the trial court’s
decision reasonably can be understood to base the award or awards on
net income, and that conclusion was consistent with the maxim that
reviewing courts should presume that the trial court has exercised its
discretion in accordance with the governing law.
In the present case, the trial court’s only specific finding as to the plain-
tiff’s earning capacity was expressed in terms of gross earning capacity,
but the court expressly referred to the plaintiff’s net weekly income as
being accurately reflected in the plaintiff’s financial affidavit, the court
did not expressly state that the gross amount rather than the net amount
furnished the basis for the alimony calculation, and, although it would
have been better practice for the trial court to make an express finding
with respect to the plaintiff’s net earning capacity, this court could not
conclude that the court’s exercise of its discretion was based on a
misstatement of the law.
Moreover, this court’s application of the presumption that the trial court
exercised its discretion in accordance with the governing law was sup-
ported by the arithmetic underlying the trial court’s financial orders, as
the alimony award of $5000 per month constituted approximately 37
percent of the plaintiff’s net annual earning capacity, as calculated from
the net weekly income reported in the plaintiff’s financial affidavit, and
that percentage did not indicate an abuse of discretion relative to the
earning capacity on which it was based.
d. The trial court’s alimony award was not an abuse of discretion when
the award was viewed in light of the plaintiff’s ability to pay and the
defendant’s earning capacity:
The alimony award was consistent with the trial court’s express reliance
on the reduced earning capacity of the defendant, who was earning $12
per hour at a part-time job at the time of trial, relative to that of the
plaintiff, the court declined to credit expert testimony that the defendant
had a much higher earning capacity given her inability to secure profes-
sional employment in the legal and nonprofit fields, and the court recog-
nized her contributions to the marriage and the fact that those contribu-
tions aided in the plaintiff’s professional success.
Moreover, the parties’ cash assets were split evenly, and the plaintiff
received the marital home, 45 percent of the retirement accounts, and
75 percent of the distributions from the real estate asset, and the financial
orders did not force the plaintiff to the brink of poverty by stripping
him of any means with which to pay them by virtue of a disproportionate
division of the marital assets.
Furthermore, the trial court expressly recognized that the parties’ finan-
cial circumstances might evolve and emphasized that the alimony award
was subject to modification if her yearly gross earnings were to equal
or exceed $50,000.
Argued December 15, 2022—officially released September 5, 2023
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Haven, where the defendant filed a cross
complaint; thereafter, the court, Klau, J., denied the
plaintiff’s motion to enforce the parties’ prenuptial
agreement; subsequently, the court, Goodrow, J., ren-
dered judgment dissolving the marriage and granting
certain other relief, from which the plaintiff appealed.
Affirmed.
Howard Fetner, with whom was Felicia C. Hunt, for
the appellant (plaintiff).
Sarah E. Murray, with whom was Eric J. Broder,
for the appellee (defendant).
Opinion
ROBINSON, C. J. The principal issue in this appeal
requires us to consider the extent to which a Connecti-
cut court may enforce the terms of a ‘‘ketubah,’’ which
is a contract governing marriage under Jewish law,1
without entangling itself in religious matters in violation
of the first amendment to the United States constitution.
The plaintiff, Jon-Jay Tilsen, appeals2 from the judgment
of the trial court dissolving his marriage to the defen-
dant, Miriam E. Benson. On appeal, the plaintiff con-
tends that the trial court improperly (1) denied his
motion to enforce the terms of the parties’ ketubah as
a prenuptial agreement on the ground that doing so
would violate the first amendment, and (2) issued cer-
tain financial orders that were based on a clearly errone-
ous finding as to his earning capacity, were not based
on his net earning capacity, and did not reflect his
current financial circumstances.3 We disagree and,
accordingly, affirm the judgment of the trial court.
The record reveals the following facts and procedural
history. The parties met in Israel in 1988 and were
married the next year in Pennsylvania on December
3, 1989. Their wedding ceremony was conducted in
accordance with the Jewish tradition. Shortly before
the marriage ceremony, in the presence of two wit-
nesses, the parties signed their ketubah, which is a
traditional Jewish marriage contract written in Hebrew
and Aramaic.4
The parties moved from Israel to the United States
to further the plaintiff’s career opportunities as a Con-
servative rabbi. He found employment in the United
States as the rabbi of a Conservative synagogue in New
Haven, where he served for nearly twenty-eight years,
until March, 2020, when the synagogue elected not to
renew his employment contract during the pendency
of this action. The defendant, who is educated and
trained as an attorney, worked as a Social Security
disability attorney, a paralegal, and a nonprofit execu-
tive. At the time of this action, she was unemployed
and had not worked as an attorney since 2015, despite
efforts to find employment. While married to the plain-
tiff, the defendant was the primary caregiver to the
parties’ four children, all of whom are now adults, with
the youngest reaching the age of the majority three days
after the trial court rendered judgment. The defendant
also assumed numerous volunteer responsibilities in
connection with her role as the rabbi’s wife, including
hosting weekly dinners and other social events, organiz-
ing children’s groups and other educational program-
ming for the synagogue, and attending and leading cer-
tain services at the synagogue.
Based on the irretrievable breakdown of the parties’
relationship with no possibility of reconciliation, the
plaintiff brought this marital dissolution action in 2018.
In the second amended complaint, the plaintiff sought,
among other financial and custody orders, the enforce-
ment of the parties’ ketubah as a premarital agreement
dated December 3, 1989. The plaintiff subsequently
moved for ‘‘an order confirming that the parties’ Decem-
ber 3, 1989 prenuptial agreement is valid and enforce-
able and [that] the parties’ asset division and support
award orders should be entered according to Hebrew
law based on the valid choice of law clause found in
the parties’ ketubah.’’ In that motion, which included
proposed financial orders, the plaintiff argued that
enforcement of the ketubah, and the application of Jew-
ish law, would result in an equal division of marital
property, excluding individual property acquired through
gift or bequest not specifically conveyed to the other
spouse, with no alimony or claims against future
income. The defendant filed an objection to the plain-
tiff’s motion to enforce the ketubah.
After a hearing, the trial court, Klau, J., denied the
plaintiff’s motion to enforce the ketubah.5 In its memo-
randum of decision, the court assumed, ‘‘without decid-
ing, that the ketubah is otherwise a valid prenuptial
agreement under Connecticut law,’’ and it applied the
‘‘neutral principles of law’’ doctrine as articulated in,
for example, Jones v. Wolf, 443 U.S. 595, 602–604, 99
S. Ct. 3020, 61 L. Ed. 2d 775 (1979), and Thibodeau v.
American Baptist Churches of Connecticut, 120 Conn.
App. 666, 674, 994 A.2d 212, cert. denied, 298 Conn. 901,
3 A.3d 74 (2010), to conclude that the first amendment
precluded enforcement of the ketubah provision on
which the plaintiff relied in support of a 50/50 division
of marital property and relief from an obligation to
pay alimony to the defendant. That provision states in
relevant part that the parties ‘‘agreed to divorce [or,
separate from] one another according to custom all
the days of their life [i.e., as a continuing obligation]
according to Torah law as is the manner of Jewish
people. . . .’’ In its analysis, the trial court conducted
a comprehensive review of the body of case law con-
cerning the enforceability of various religious wedding
contract provisions, including (1) the New York Court
of Appeals’ landmark decision in Avitzur v. Avitzur,
58 N.Y.2d 108, 446 N.E.2d 136, 459 N.Y.S.2d 572, cert.
denied, 464 U.S. 817, 104 S. Ct. 76, 78 L. Ed. 2d 88 (1983),
and (2) the Superior Court’s decision in Light v. Light,
Superior Court, judicial district of New Haven, Docket
No. NNH-FA-XX-XXXXXXX-S (December 6, 2012) (55
Conn. L. Rptr. 145). Observing that the parties had sub-
mitted conflicting affidavits from rabbis about ‘‘Torah
law as it pertains to alimony and property division,’’ the
trial court reasoned that enforcement of the ketubah’s
divorce provision would require the court to ‘‘choose
between competing [rabbinical] interpretations of [the
provision’s] requirement that the parties’ divorce should
accord with ‘Torah law’ ’’ and that ‘‘resolving such a
dispute is precisely what the neutral principles
approach forbids a court to do’’ under the first amend-
ment.6 Accordingly, the trial court denied the plaintiff’s
motion to enforce the ketubah.
Subsequently, the case was tried to the court, Goo-
drow, J., over multiple days.7 The trial court found that
both parties were unemployed at the time of trial, that
the plaintiff’s then gross yearly earning capacity was
$202,100, which was consistent with his final compensa-
tion from the synagogue, and that the defendant’s then
‘‘gross weekly earning capacity [was] $480,’’ which
reflected her ability to secure nonprofessional, full-time
employment at a wage of $12 per hour. Given those
findings, which are set forth in detail in part II of this
opinion, the trial court considered the statutory factors
set forth in General Statutes §§ 46b-81 and 46b-82 and
rendered a judgment of dissolution with numerous
financial orders, including (1) requiring the plaintiff to
pay the defendant alimony in the amount of $5000 per
month for a period of fifteen years, while precluding
the plaintiff from seeking modification based on the
defendant’s increased earnings unless those ‘‘yearly
gross earnings total $50,000 or more,’’ (2) awarding the
plaintiff sole possession and ownership of the marital
home in New Haven, and (3) allowing the plaintiff to
retain his ownership interest in Westview Park Apart-
ments, L.P. (Westview), a real estate asset established
by the plaintiff’s father and uncle, but requiring him to
pay the defendant 25 percent of the net, after tax amount
of any distributions that he receives from that interest,
including its sale. This appeal followed.
On appeal, the plaintiff claims that the trial court (1)
improperly denied his motion to enforce the ketubah,
and (2) abused its discretion in fashioning the various
financial orders.
I
We begin with the plaintiff’s claim that the trial court
improperly denied his motion to enforce the ketubah.
The plaintiff argues that (1) enforcement of the ketubah
would not violate the establishment clause of the first
amendment, and (2) failing to enforce the ketubah
would violate his rights under the free exercise clause
of the first amendment.
By way of background, this appeal concerns the reli-
gion clauses of the first amendment to the United States
constitution, which provides in relevant part: ‘‘Congress
shall make no law respecting an establishment of reli-
gion, or prohibiting the free exercise thereof . . . .’’
U.S. Const., amend. I; see, e.g., Everson v. Board of
Education, 330 U.S. 1, 8, 67 S. Ct. 504, 91 L. Ed. 711(1947) (religion clauses of first amendment are made
applicable to states via due process clause of fourteenth
amendment). Compare Watson v. Jones, 80 U.S. (13
Wall.) 679, 727, 20 L. Ed. 666 (1871) (declaring, as matter
of federal common law, principle, ‘‘founded in a broad
and sound view of the relations of church and state
under our system of laws,’’ that civil courts are to defer
to religious authorities on ‘‘questions of [church] disci-
pline, or of faith, or ecclesiastical rule, custom, or law’’),
with Kedroff v. Saint Nicholas Cathedral of the Russian
Orthodox Church in North America, 344 U.S. 94, 115–
16, 73 S. Ct. 143, 97 L. Ed. 120 (1952) (constitutionalizing
principle from Watson after recognizing that it had been
decided without express reference to first amendment).
‘‘A brief overview of the religion clauses of the first
amendment as they [apply] to the present case may
be helpful. The first amendment to the United States
constitution protects religious institutions from govern-
mental interference with their free exercise of religion.’’
(Footnote omitted; internal quotation marks omitted.)
Thibodeau v. American Baptist Churches of Connecti-
cut, supra, 120 Conn. App. 670–71. ‘‘The first amend-
ment [also] prohibits the excessive entanglement of
government and religion.’’ Board of Education v. State
Board of Education, 243 Conn. 772, 783, 709 A.2d 510(1998). ‘‘[T]he first amendment has been interpreted
broadly to severely [circumscribe] the role that civil courts
may play in resolving . . . disputes concerning issues
of religious doctrine and practice. . . . Under both the
free exercise clause and the establishment clause, the
first amendment prohibits civil courts from resolving
disputed issues of religious doctrine and practice.’’
(Citation omitted; internal quotation marks omitted.)
Thibodeau v. American Baptist Churches of Connecticut,
supra, 671. ‘‘Under [the] excessive entanglement analy-
sis . . . claims requiring courts to review and to inter-
pret religious doctrine and practices are barred by the
first amendment.’’ (Internal quotation marks omitted.)
Id.; see Serbian Eastern Orthodox Diocese of the United
States & Canada v. Milivojevich, 426 U.S. 696, 697–98,
721–23, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976) (holding
that first amendment barred judicial consideration of
bishop’s wrongful discharge claim).
Before turning to the plaintiff’s specific first amend-
ment claims with respect to the enforceability of the
ketubah in this case, we observe that they present ques-
tions of law over which our review is plenary. See, e.g.,
Lafferty v. Jones, 336 Conn. 332, 352–53, 246 A.3d 429(2020), cert. denied, U.S. , 141 S. Ct. 2467, 209
L. Ed. 2d 529 (2021).
A
We begin with the plaintiff’s establishment clause
claims. He argues that enforcement of the ketubah
would not violate the establishment clause of the first
amendment because it contains nothing more than a
choice of law provision that is enforceable under the
‘‘neutral principles of law’’ analysis articulated by the
United States Supreme Court in Jones v. Wolf, supra, 443
U.S. 602–604. Relying on, for example, In re Marriage
of Goldman, 196 Ill. App. 3d 785, 554 N.E.2d 1016, appeal
denied, 132 Ill. 2d 544, 555 N.E.2d 376 (1990) (Goldman),
Minkin v. Minkin, 180 N.J. Super. 260, 434 A.2d 665(Ch. Div. 1981), and Avitzur v. Avitzur, supra, 58 N.Y.2d
108, the plaintiff contends that Jewish law governing
marriage is secular in nature, thus permitting a court to
apply it without having to review or interpret religious
doctrine in a way that would violate the first amend-
ment. Citing Light v. Light, supra, 55 Conn. L. Rptr.
145, the plaintiff observes that our Superior Court has
applied Jewish law in conjunction with dissolution judg-
ments by enforcing a ketubah provision imposing a
monetary penalty on a husband until he granted the
wife a ‘‘get,’’ or a Jewish religious divorce. See id., 146,
149 and n.1.
In response, the defendant argues that the trial court
correctly determined that enforcing the ketubah, as
desired by the plaintiff, would violate the establishment
clause by entangling the trial court in religious matters.
The defendant contends that the ketubah cannot be
enforced under the neutral principles of law doctrine
because, given the ‘‘vastly conflicting’’ interpretations
of Torah law governing marriage and divorce proffered
by the parties, issuing the financial orders ‘‘would
require the court to apply religious doctrine and prac-
tices and [to] inquire into religious matters . . . .’’ Rely-
ing on, for example, Victor v. Victor, 177 Ariz. 231, 866
P.2d 899 (App. 1993), review denied, Arizona Supreme
Court (February 1, 1994), and Aflalo v. Aflalo, 295 N.J.
Super. 527, 685 A.2d 523 (Ch. Div. 1996), the defendant
emphasizes that ‘‘[d]istinguishing between Torah law
that is religious and Torah law that is secular is inher-
ently a question of religious law that civil courts cannot
decide without running afoul of the establishment
clause’’ because, ‘‘[i]n order to . . . make such a deter-
mination, a civil court would be required to analyze
Jewish law and potentially to decide between differing
interpretations of Jewish law . . . .’’ The defendant fur-
ther contends that the cases on which the plaintiff
relies, in which the husband was ordered to perform a
specific act, such as appearing before a ‘‘Beth Din’’ (a
Jewish tribunal) or issuing a get; see In re Marriage of
Goldman, supra, 196 Ill. App. 3d 787, 791; Minkin v.
Minkin, supra, 180 N.J. Super. 261; Avitzur v. Avitzur,
supra, 58 N.Y.2d 112–13; are distinguishable because
the parties’ obligations under Jewish law were facially
clear from the ketubah or otherwise were not disputed.
We agree with the defendant and conclude that the
trial court correctly determined that enforcement of
the ketubah in this case would violate the establishment
clause of the first amendment.
The establishment clause’s preclusion against inquir-
ing into religious matters has been described broadly
as the ‘‘ecclesiastical abstention doctrine’’; McRaney v.
North American Mission Board of the Southern Baptist
Convention, Inc., 966 F.3d 346, 348 (5th Cir. 2020), cert.
denied, U.S. , 141 S. Ct. 2852, 210 L. Ed. 2d 961(2021); and it was first articulated by the United States
Supreme Court in Watson v. Jones, supra, 80 U.S. (13
Wall.) 727, which was a church property dispute. See,
e.g., Ball v. Ball, 250 Ariz. 273, 279, 478 P.3d 704 (App.
2020); Episcopal Church in the Diocese of Connecticut
v. Gauss, 302 Conn. 408, 422–24, 28 A.3d 302 (2011),
cert. denied, 567 U.S. 924, 132 S. Ct. 2773, 183 L. Ed.
2d 653 (2012); see also Our Lady of Guadalupe School
v. Morrissey-Berru, U.S. , 140 S. Ct. 2049, 2061,
207 L. Ed. 2d 870 (2020) (describing ‘‘church autonomy’’
doctrine with respect to governance matters and super-
vision and selection of clergy).
In considering whether a civil court may consider
a claim implicating a religious institution or practice
without violating the establishment clause, courts often
apply the ‘‘neutral principles of law’’ doctrine articu-
lated by the United States Supreme Court in Jones v.
Wolf, supra, 443 U.S. 602–604, which, like Watson, was
a church property dispute. Under the neutral principles
approach, a court resolving a dispute arising in a reli-
gious context may be required ‘‘to examine certain reli-
gious documents, such as a church constitution,’’ but
‘‘must take special care to scrutinize the document in
purely secular terms, and not to rely on religious pre-
cepts’’ or ‘‘to resolve a religious controversy . . . .’’
Id., 604. This court has concluded that ‘‘the neutral
principles of law approach is preferable [to the hierar-
chical approach of Watson v. Jones, supra, 80 U.S. (13
Wall.) 725–27], because it provides the parties with a
more level playing field, and the outcome in any given
case is not preordained in favor of the general church,
as happens in practice under the hierarchical approach.
Moreover, as the court explained in Jones [v. Wolf,
supra, 603], the neutral principles approach is com-
pletely secular and relies exclusively on objective, well
established concepts of trust and property law familiar
to lawyers and judges.’’ (Internal quotation marks omit-
ted.) Episcopal Church in the Diocese of Connecticut
v. Gauss, supra, 302 Conn. 429; see Thibodeau v. Ameri-
can Baptist Churches of Connecticut, supra, 120 Conn.
App. 673–74; see also Presbyterian Church in the United
States v. Mary Elizabeth Blue Hull Memorial Presbyte-
rian Church, 393 U.S. 440, 449–50, 89 S. Ct. 601, 21 L.
Ed. 2d 658 (1969) (relying on neutral principles of law
approach in concluding that ‘‘[t]he departure-from-doc-
trine element of the implied trust theory’’ under Georgia
law of property dispute resolution violated first amend-
ment). Put differently, the neutral principles of law doc-
trine permits civil courts to decide disputes arising in
religious contexts, so long as they may be resolved
solely by a secular legal analysis that does ‘‘not impli-
cate or [is] not informed by religious doctrine or prac-
tice.’’8 Thibodeau v. American Baptist Churches of
Connecticut, supra, 674.
In addition to tort, property, and employment cases,9
the broad first amendment preclusion against inquiring
into matters of religious faith and doctrine has been
applied in the family law context. Courts have applied
the neutral principles of law doctrine to assess the
permissibility of a desired remedy under the first amend-
ment, including whether the provisions of a Jewish cou-
ple’s ketubah may constitutionally be given effect in a
civil proceeding to dissolve the couple’s marriage. This
constitutional question is inherent in the nature of the
ketubah because, although it ‘‘resembles a contract in
many ways, its formation and impact sport complex
religious undertones. The [k]etubah defines a husband’s
marital estate and child support obligations, but its role
in a sanctified marriage process gives it spiritual weight.
Although some clauses are reminiscent of a prenuptial
agreement, anachronistic wording and allegiance to the
[law] of Moses offer spiritually intertwined responsibili-
ties.’’ (Footnote omitted.) L. Traum, Note, ‘‘Involved,
Empowered and Inspired: How Mediating Halakhic Pre-
nuptial Agreements Honors Jewish and American Law
and Builds Happy Families,’’ 17 Cardozo J. Conflict
Resol. 179, 182 (2015). In considering the enforceability
of a ketubah by the civil courts, we must also be mindful
that, although religious and civil marital privileges and
obligations may overlap, including as to matters of dis-
solution, our state courts may provide relief only in the
civil sphere. See, e.g., Hames v. Hames, 163 Conn. 588,
590–91, 594–96, 316 A.2d 379 (1972) (concluding that
parties’ second marriage was voidable when performed
under remarriage ceremony that complied with Catho-
lic canon law, which did not recognize parties as
divorced, but was inconsistent with General Statutes
§ 46-3, now General Statutes § 46b-22, which governs
solemnization of marriages); see also id., 594–95 (observ-
ing that ‘‘[r]eligious doctrines notwithstanding, the par-
ties were legally divorced, not merely legally separated,
by force of a decree binding on all the world as to the
existence of their status,’’ and that, ‘‘even if canon law
should deny the authority of the state to dissolve a
marriage, religious doctrine could not nullify the
decrees of our courts’’ (internal quotation marks omit-
ted)).
The leading case on this point—and the only one
from a state high court—is the decision of the New
York Court of Appeals in Avitzur v. Avitzur, supra, 58
N.Y.2d 108. Although the parties in Avitzur had pre-
viously obtained a civil divorce judgment, a woman ‘‘is
not considered divorced and may not remarry pursuant
to Jewish law, until such time as a Jewish divorce
decree, known as a ‘[g]et’, is granted. In order that a
[g]et may be obtained [the husband and wife] must
appear before a ‘Beth Din,’ a rabbinical tribunal having
authority to advise and pass [on] matters of traditional
Jewish law.’’10 Id., 112. The wife in Avitzur ‘‘sought to
summon [the husband] before the Beth Din pursuant
to the provision of the [k]etubah recognizing that body
as having authority to counsel the couple in the matters
concerning their marriage.’’ Id. The husband ‘‘refused
to appear before the Beth Din, thus preventing [the
wife] from obtaining a religious divorce.’’ Id. The wife
then brought an action for breach of contract, claiming
that ‘‘the [k]etubah constitutes a marital contract, which
[the husband had] breached by refusing to appear
before the Beth Din,’’ and seeking ‘‘specific perfor-
mance of the [k]etubah’s requirement that he appear
before the Beth Din.’’ Id. The majority of the New York
Court of Appeals concluded that the parties, ‘‘in signing
the [k]etubah, [had] entered into a contract [that]
formed the basis for their marriage,’’ with ‘‘the terms
of this marital contract’’ obligating the husband, ‘‘at [the
wife’s] request, [to] appear before the Beth Din for the
purpose of allowing that tribunal to advise and counsel
the parties in matters concerning their marriage, includ-
ing the granting of a [g]et.’’ Id., 113. The court empha-
sized that the wife was ‘‘not attempting to compel [the
husband] to obtain a [g]et or to enforce a religious
practice arising solely out of principles of religious law.
She merely [sought] to enforce an agreement made by
[the husband] to appear before and [to] accept the deci-
sion of a designated tribunal.’’ Id.
The majority in Avitzur then rejected the husband’s
argument that ‘‘enforcement of the terms of the [k]etu-
bah by a civil court would violate the constitutional
prohibition against excessive entanglement between
church and [s]tate, because the court must necessarily
intrude [on] matters of religious doctrine and practice.
It [was] urged that the obligations imposed by the [k]et-
ubah arise solely from Jewish religious law and can be
interpreted only with reference to religious dogma.’’
Id., 114. Acknowledging ‘‘the religious character of the
[k]etubah’’; id.; the majority applied the neutral princi-
ples of law approach from Jones v. Wolf, supra, 443
U.S. 602–603, and concluded that the first amendment
‘‘permit[ted] judicial involvement to the extent that
[enforcement of the ketubah could] be accomplished
in purely secular terms.’’ Avitzur v. Avitzur, supra, 58
N.Y.2d 115. The court held that ‘‘the relief sought by
[the wife was] . . . simply to compel [the husband] to
perform a secular obligation to which he contractually
bound himself. In this regard, no doctrinal issue
need[ed] [to] be [addressed], no implementation of a
religious duty [was] contemplated, and no interference
with religious authority [would] result. Certainly noth-
ing the Beth Din [could] do would in any way affect
the civil divorce. To the extent that an enforceable
promise [could] be found by the application of neutral
principles of contract law, [the wife would] have dem-
onstrated entitlement to the relief sought.’’ Id. The court
emphasized that ‘‘[c]onsideration of other substantive
issues bearing [on the wife’s] entitlement to a religious
divorce . . . [was] appropriately left to the forum the
parties chose for resolving the matter.’’ Id., 115–16.
We agree with the Avitzur majority that, in principle,
parties should be permitted to elect to have dissolution
disputes arbitrated in an alternative forum, albeit one
that is religious in orientation, in situations in which it
is possible to enforce such an agreement without ‘‘[c]on-
sideration of other substantive issues bearing [on an]
entitlement to a religious divorce . . . .’’ Id., 115.
Avitzur, however, was a 4-3 decision of the New York
Court of Appeals; id., 121; and, on the whole, we find
more persuasive the dissenting opinion in Avitzur,
which deemed it impossible for a court to disentangle
secular from religious considerations in adjudicating
the dispute at hand. See id., 118–19 (Jones, J., dis-
senting). The dissent agreed that the inquiry was gov-
erned by the neutral principles of law doctrine but ulti-
mately disagreed with the majority’s conclusion that,
on the specific facts of that case, ‘‘courts may discern
one or more discretely secular obligations [that] may
be fractured out of the ‘[k]etubah,’ indisputably in its
essence a document prepared and executed under Jew-
ish law and tradition.’’ Id., 116 (Jones, J., dissenting).
The dissent determined that ‘‘even a definition of the
purported ‘secular obligation,’ ’’ namely, to appear
before the Beth Din, ‘‘requires an examination into the
principles and practice of the Jewish religion,’’ espe-
cially given the parties’ apparent disagreement as to
the scope of the Beth Din’s authority to summon the
husband in that particular case. Id., 119 (Jones, J., dis-
senting); see id., 120 (Jones, J., dissenting). We deem
particularly significant the dissent’s observation that
the ‘‘unsoundness’’ of the majority’s position is demon-
strated by the wife’s reliance on a rabbi’s affidavit as to
the Beth Din process and its authority, meaning that—
as with the plaintiff’s claims in this case—‘‘substantia-
tion of her position . . . depend[ed] on expert opinion
with respect to Jewish law and tradition.’’ Id., 120
(Jones, J., dissenting). In our view, requiring the court
to go beyond the four corners of the document at issue
in order to determine what Jewish law requires is a
paradigmatic example of entanglement that runs afoul
of the establishment clause.11
For the same reason, we disagree with the decision
of the Illinois Court of Appeals in Goldman, on which
the plaintiff relies heavily in this case. See In re Mar-
riage of Goldman, supra, 196 Ill. App. 3d 785. In Gold-
man, the Illinois court upheld a trial court’s order
requiring a husband to take the steps necessary to pro-
vide his wife with a get in connection with their civil
divorce. See id., 791–95, 797. In Goldman, the parties’
ketubah was similar to the ketubah in the present case,
insofar as it provided that the marriage would be
‘‘ ‘according to the law[s] of Moses and Israel,’ ’’ without
specifically addressing the topic of dissolution in any
way. Id., 787; see footnote 4 of this opinion. Despite
this vague language, the Illinois court deferred to the
trial court’s factual finding that the parties intended
the ketubah to be a contract to govern their marriage
according to Orthodox Jewish law, rather than to serve
‘‘merely as poetry or art in connection with the marriage
ceremony.’’ In re Marriage of Goldman, supra, 792. The
court also noted the uncontradicted testimony of two
Orthodox Jewish rabbis that Jewish law required the
husband to grant the wife a get in the event of divorce
and that that process was ‘‘secular rather than religious
in nature’’ as a matter of Jewish law. Id., 790; see id.,
793–94. The court relied on, among other cases, Avitzur
v. Avitzur, supra, 58 N.Y.2d 108; see In re Marriage of
Goldman, supra, 795; and concluded that ordering the
husband to provide a get was consistent with the neutral
principles of law doctrine because it had ‘‘the secular
purpose of enforcing a contract between the parties’’
and expedited the resolution of the civil divorce pro-
ceedings, insofar as, ‘‘[w]ithout the get, [the wife] was
prohibited by her religious beliefs from remarrying. It
would have been detrimental to the parties and their
children to leave the get issue unresolved.’’ Id., 794.
Particularly given the reliance by the Goldman majority
on expert testimony to discern what Jewish law required
in that case, we instead find the Goldman dissent more
persuasive. The dissent concluded that it would violate
the first amendment to order the husband to provide the
wife a get because construction of the vague ketubah
language ‘‘required the court to partake in evaluation,
investigation and interpretation of religious dogma,’’
and compelled the husband’s ‘‘involvement in an act of
religious worship.’’12 Id., 799 (Johnson, J., dissenting);
see P. Finkelman, ‘‘A Bad Marriage: Jewish Divorce and
the First Amendment,’’ 2 Cardozo Women’s L.J. 131,
149–50 (1995) (criticizing Goldman because ‘‘a secular
court [was] trying to determine what is religious law
. . . what is the ‘law[s] of Moses and Israel,’ ’’ which
‘‘lead[s] precisely to the kind of entanglement with reli-
gion that American courts have historically rejected’’).
Thus, we find more instructive those cases that have
applied the neutral principles of law doctrine to con-
clude that the first amendment precludes a civil court’s
enforcement of ketubah provisions similar to those in
the present case. For example, in Victor v. Victor, supra,
177 Ariz. 231, the parties had entered into a ketubah,
similar to the one in the present case, which provided
in relevant part that ‘‘the parties will comply with the
‘laws of Moses and Israel’ . . . .’’ Id., 232. The husband
in Victor repeatedly refused the wife’s request for a get,
and she asked the court to order the husband to grant
her one in connection with the civil dissolution proceed-
ings. Id. The Arizona Court of Appeals rejected the
wife’s reliance on Avitzur and Goldman, among other
cases, for the proposition that ‘‘the ketubah itself, which
obligates the parties to live in accordance with the
moral precepts of Jewish law, is a premarital contract
that can be specifically enforced as would be the case
in any other type of settlement between litigants.’’
(Internal quotation marks omitted.) Victor v. Victor,
supra, 233. Analyzing the ketubah as an antenuptial
agreement, the court concluded that ‘‘the only specific
provisions in the ketubah relate[d] to financial obliga-
tions’’ and rejected the wife’s reliance on its ‘‘language
that the parties [would] comply with the ‘laws of Moses
and Israel.’ ’’ Id., 234. The court held that ‘‘[s]uch a vague
provision has no specific terms describing a mutual
understanding that [the] husband would secure a Jew-
ish divorce. . . . If [the] court were to rule on whether
the ketubah, given its indefinite language, includes an
unwritten mandate that a husband under these circum-
stances is required to grant his wife a get, [the court]
would be overstepping [its] authority and assuming the
role of a religious court. This [the court] decline[d] to
do. [The court held] . . . as a matter of law, [that] the
ketubah [did] not constitute an enforceable antenuptial
agreement.’’13 (Citation omitted.) Id.A New Jersey trial court decision, Aflalo v. Aflalo,
supra, 295 N.J. Super. 527, is similarly instructive. In
that case, the husband sought to compel the wife to
appear before a Beth Din to facilitate their potential
reconciliation, and the wife sought an order directing
the husband to provide her with a get. Id., 530–31. Citing
the United States Supreme Court’s decision in Serbian
Eastern Orthodox Diocese of the United States & Can-
ada v. Milivojevich, supra, 426 U.S. 696, the court dis-
agreed with an earlier New Jersey trial court decision,
Minkin v. Minkin, supra, 180 N.J. Super. 263–66, order-
ing a husband to provide his wife with a get, on which
the plaintiff relies in the present case. See Aflalo v.
Aflalo, supra, 538; see also footnote 13 of this opinion.
The court in Aflalo deemed the court’s ‘‘conclusion [in
Minkin] that an order requiring the husband to provide
a ‘get’ is not a religious act [and does not involve] the
court in the religious beliefs or practices of the parties
[to be] not at all convincing. It is interesting that the
court [in Minkin] was required to choose between the
conflicting testimony of the various rabbis to reach this
conclusion. The one way in which a court may become
entangled in religious affairs, which the court in Min-
kin did not recognize, was in becoming an arbiter of
what is ‘religious.’ ’’ (Emphasis added; footnote omit-
ted.) Aflalo v. Aflalo, supra, 538. The court in Aflalo
also rejected the conclusion that the enforcement of
the ketubah ‘‘concerned purely civil issues’’ because
the prohibition on remarrying without a get affects only
a desire to marry another Jewish person, meaning that
the order of a get ‘‘directly affected the religious beliefs
of the parties. By entering the order, the court empow-
ered the wife to remarry in accordance with her reli-
gious beliefs and also similarly empowered any children
later born to her. The mere fact that the ‘get’ [did] not
contain the word ‘God,’ which the court in Minkin
found significant, [was] hardly reason to conclude oth-
erwise.’’14 Id., 538–39; see also Sieger v. Sieger, 37 App.
Div. 3d 585, 586–87, 829 N.Y.S.2d 649 (2007) (declining
to review wife’s claim that Beth Din order obtained by
husband, ‘‘which allowed him to remarry without first
giving the wife a ‘get,’ ’’ did not comply with New York
statute that ‘‘prevent[s] the husband in the case of a
Jewish divorce from using the denial of a ‘get’ as a form
of economic coercion in a civil divorce action,’’ because
that claim ‘‘would require the court to review and inter-
pret religious doctrine and [to] resolve the parties’ reli-
gious dispute, which the court [was] proscribed from
doing under the [f]irst [a]mendment entanglement doc-
trine’’).
Turning to the record in the present case, we con-
clude that the plaintiff’s desired relief violates the estab-
lishment clause under the neutral principles of law doc-
trine. Most significant, the parties’ ketubah is facially
silent as to each spouse’s support obligations in the
event of dissolution of the marriage, thus leaving the
court to determine those obligations from external
sources as to Jewish law, namely, the parties’ expert
witnesses, whose proffered opinions differed in this
case, instantly alerting the court as to the establishment
clause dilemma. This renders the present case distinct
from Avitzur, in which—under the majority’s view of
the record—the contested portion of the ketubah was
more akin to a typical arbitration clause, insofar as it
facially required only the submission of the case to the
specific Beth Din and did not require the court to dis-
cern and enforce what Jewish law requires with respect
to property division and financial support upon dissolu-
tion. See Avitzur v. Avitzur, supra, 58 N.Y.2d 113–15.
Making that determination, especially in the presence
of conflicting rabbinical opinions, would render this
case a textbook entanglement into religious matters,
right to the threshold question of whether those obliga-
tions are indeed ‘‘religious’’ in the first instance. See
Victor v. Victor, supra, 177 Ariz. 234; Aflalo v. Aflalo,
supra, 295 N.J. Super. 538–40; Sieger v. Sieger, supra,37 App. Div. 3d 586–87; see also Davis v. Scher, 356
Mich. 291, 302–304, 97 N.W.2d 137 (1959) (applying
express trust doctrine to resolve property dispute
between factions of Orthodox Jewish congregation on
basis of uncontroverted evidence at trial that ‘‘the teach-
ing of Orthodox Judaism’’ precludes mixed gender seat-
ing); Fisher v. Congregation B’nai Yitzhok, 177 Pa.
Super. 359, 363–65, 110 A.2d 881 (1955) (deferring to
findings of trial court ‘‘that the parties contracted on
the common understanding that the defendant was an
[O]rthodox synagogue [that] observed the mandate of
the Jewish law as to separate [gender] seating’’ during
High Holiday season, and rabbi’s statement on that
point was not used to establish truth of matter asserted
but to show contracting parties’ intent). We conclude,
therefore, that the establishment clause of the first
amendment precludes the relief sought by the plaintiff.
B
We next address the plaintiff’s claim that the trial
court’s decision not to enforce the ketubah violated
his rights under the free exercise clause of the first
amendment because it prevented him from divorcing
according to Jewish law, as the parties had agreed. Re-
lying on Espinoza v. Montana Dept. of Revenue,
U.S. , 140 S. Ct. 2246, 207 L. Ed. 2d 679 (2020), and
Trinity Lutheran Church of Columbia, Inc. v. Comer,
U.S. , 137 S. Ct. 2012, 198 L. Ed. 2d 551 (2017),
the plaintiff also argues that the trial court violated his
free exercise rights by denying him a generally available
benefit, namely, the enforcement of a prenuptial agree-
ment, as a result of the parties’ choice of Torah law to
govern that agreement. Citing In re Landis, 5 Ohio App.
3d 22, 23, 448 N.E.2d 845 (1982), in which the trial court
enforced a separation agreement providing that the hus-
band would pay for his children’s tuition at a Christian
school, the plaintiff contends that the trial court’s deci-
sion has the effect of using the establishment clause to
violate the parties’ freedom of contract and free exer-
cise of religion.
In response, the defendant observes that the plain-
tiff’s free exercise claim irreconcilably conflicts with
his establishment clause arguments that Jewish law on
this point is not religious. The defendant also argues
that the plaintiff’s claim is unpreserved and not review-
able under State v. Golding, 213 Conn. 233, 239–40, 567
A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015),15 because the lack
of a finding as to whether the plaintiff’s position that
Torah law should govern the dissolution of his marriage
is a ‘‘sincerely held’’ religious belief renders the record
inadequate for review. Finally, the defendant contends
that, even if we deem his claim reviewable under Golding,
there is no violation of a constitutional right because
the trial court assumed the validity under Connecticut
law of the ketubah as a prenuptial agreement yet deter-
mined that enforcing it would have required it to violate
the establishment clause by deciding contested issues
of religious doctrine. Citing Presbyterian Church in
the United States v. Mary Elizabeth Blue Hull Memorial
Presbyterian Church, supra, 393 U.S. 449, and Jones v.
Wolf, supra, 443 U.S. 606, the defendant also emphasizes
that the trial court’s decision did not preclude the par-
ties from obtaining a religious divorce, or from other-
wise negotiating a civil dissolution—via a prenuptial,
postnuptial or settlement agreement—the terms of
which are consistent with Jewish law. Reviewing the
plaintiff’s unpreserved claim under Golding, we con-
clude that he has failed to prove that the trial court’s
decision not to enforce the ketubah violated his rights
under the free exercise clause.
The plaintiff’s free exercise claim implicates the ‘‘play
in the joints between what the [e]stablishment [c]lause
permits and the [f]ree [e]xercise [c]lause compels.’’ (Inter-
nal quotation marks omitted.) Trinity Lutheran Church
of Columbia, Inc. v. Comer, supra, 137 S. Ct. 2019; see,
e.g., Everson v. Board of Education, supra, 330 U.S. 3,
16 (rejecting establishment clause challenge to state
law enabling school district to reimburse parents for
transportation costs for sending children to public and
private schools, including parochial schools, because
barring use of transportation funds for parochial
schools would penalize those parents for exercise of
their faith). ‘‘The [f]ree [e]xercise [c]lause protect[s]
religious observers against unequal treatment and sub-
jects to the strictest scrutiny laws that target the reli-
gious for special disabilities based on their religious
status. . . . Applying that basic principle, [the United
States Supreme] Court has repeatedly confirmed that
denying a generally available benefit solely on account
of religious identity imposes a penalty on the free exer-
cise of religion that can be justified only by a state
interest of the highest order.’’ (Citation omitted; internal
quotation marks omitted.) Trinity Lutheran Church
of Columbia, Inc. v. Comer, supra, 2019. ‘‘[T]he [f]ree
[e]xercise [c]lause protects against indirect coercion or
penalties on the free exercise of religion, not just out-
right prohibitions.’’ (Internal quotation marks omitted.)
Id., 2022. ‘‘[T]he liberties of religion and expression may
be infringed by the denial of or placing of conditions
[on] a benefit or privilege.’’ (Internal quotation marks
omitted.) Id.; see Espinoza v. Montana Dept. of Reve-
nue, supra, 140 S. Ct. 2261 (Montana constitution’s cate-
gorical ban on use of state supported educational schol-
arship funds for religious schools violated free exercise
rights of both religious schools and families who desired
to have their children attend them); Trinity Lutheran
Church of Columbia, Inc. v. Comer, supra, 2024–25
(concluding that free exercise clause barred Missouri
constitution’s categorical exclusion of otherwise quali-
fied church operated schools and day care centers from
eligibility for state grant funds for playground resurfac-
ing). When the United States Supreme Court ‘‘has reject-
ed free exercise challenges, the laws in question have
been neutral and generally applicable without regard
to religion. [It has] been careful to distinguish such laws
from those that single out the religious for disfavored
treatment.’’ Trinity Lutheran Church of Columbia, Inc.
v. Comer, supra, 2020; see, e.g., Employment Division,
Dept. of Human Resources v. Smith, 494 U.S. 872, 874,
877–78, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990) (Native
American church members were not entitled to dispen-
sation from generally applicable criminal narcotics
laws).
Taking into account the plaintiff’s sincerely held reli-
gious beliefs for purposes of the first prong of State v.
Golding, supra, 213 Conn. 239–40, we conclude that he
has failed to prove that the trial court’s decision not to
enforce the ketubah penalized his free exercise rights,
causing his unpreserved claim to fail under the third
prong of Golding. See footnote 15 of this opinion. Partic-
ularly in view of the parties’ lack of agreement as to
what Jewish law requires in the present case given the
breadth of the ketubah’s language, making this determi-
nation as to the applicable Jewish law—untenable in
any event under the neutral principles of law doctrine—
would have risked a violation of the defendant’s free
exercise rights in the name of protecting those of the
plaintiff. See In re Landis, supra, 5 Ohio App. 3d 25(observing that acceptance of husband’s argument that
enforcing separation agreement requiring him to pay
tuition for specific religious school violates establish-
ment clause would be ‘‘counterbalanc[ed]’’ by ‘‘the
rights afforded [to the wife] under the [f]ree [e]xercise
[c]lause, including the right as custodial parent to deter-
mine whether the parties’ children [would] attend a
parochial, secular, private or public school’’); J. Solovy,
Comment, ‘‘Civil Enforcement of Jewish Marriage and
Divorce: Constitutional Accommodation of a Religious
Mandate,’’ 45 DePaul L. Rev. 493, 530 (1996) (describing
‘‘the inherent conflict in the [f]ree [e]xercise [c]lause’’
as ‘‘the dilemma resulting from the court’s obligation
to choose to protect one party’s free exercise rights
at the expense of the other party’s rights’’ (internal
quotation marks omitted)). Put differently, enforcement
of this vaguely worded ketubah in the guise of pro-
tecting the plaintiff’s free exercise rights would have
put the trial court on the horns of an establishment
clause dilemma.
Second, the trial court did not deny the plaintiff
access to the court or otherwise exact some kind of
penalty in connection with his religious beliefs or prac-
tices; its decision simply meant that this dissolution
action would be governed by generally applicable prin-
ciples of Connecticut law as expressed in our alimony
and equitable distribution statutes. Parties who desire
specific tenets of their religious beliefs to govern the
resolution of marital dissolution actions remain free to
contract for that relief via a properly executed antenup-
tial, postnuptial, or separation agreement that is specifi-
cally worded to express those beliefs in a way that
avoids establishment clause concerns under the neutral
principles of law doctrine.16 Compare In re Landis,
supra, 5 Ohio App. 3d 28 (concluding that ‘‘enforcement
of a separation agreement, supported by consideration,
between the parents of a minor child, requiring the
noncustodial parent to pay tuition for [the child’s] atten-
dance . . . at a religiously oriented school, either spec-
ified in the agreement or selected by the custodial par-
ent, violates neither the [e]stablishment [c]lause nor
the [f]ree [e]xercise [c]lause of the [f]irst [a]mend-
ment’’), with Ball v. Ball, supra, 250 Ariz. 279–81 (trial
court violated first amendment by hearing evidence,
including testimony from ministers and documentary
evidence comparing religious tenets, to decide whether
father’s Mormon religion was ‘‘part of the Christian
faith’’ for purposes of assessing compliance with parent-
ing plan). We conclude, therefore, that the trial court’s
denial of the plaintiff’s motion to enforce the ketubah
did not violate his rights under the free exercise clause
of the first amendment. Accordingly, the trial court
properly denied the plaintiff’s motion to enforce the
ketubah.
II
We next address the plaintiff’s challenges to the trial
court’s financial orders. The record reveals the follow-
ing additional facts, as found by the trial court, and
procedural history relevant to these claims. The parties
have lived separately since 2019; the plaintiff remains
in the marital home in New Haven, while the defendant
resides in a rental apartment. At the time of dissolution,
the plaintiff was fifty-nine years old and was ‘‘educated,
trained, and employed as a rabbi.’’ The plaintiff had
held the same position as a rabbi at a Conservative
synagogue in New Haven for nearly twenty-eight years.
While trial was pending, in March, 2020, he renegotiated
his prior, ten year employment contract, which com-
menced on July 1, 2015 (2015 contract), with a termina-
tion date of August 14, 2025. The 2015 contract set a
similarly structured schedule of compensation over the
first five years of the term and provided that the plaintiff
and the synagogue would commence negotiations with
respect to compensation for the second five years of
that term by June 15, 2019, and complete them by
December 31, 2019. During the pendency of trial, the
plaintiff renegotiated the 2015 contract for a new, one
year contract (2020 contract), with a termination date
of August, 2021. His total compensation under the 2020
contract was $202,100, which was divided into compo-
nents for base salary, parsonage payment, retirement
benefits, and medical insurance payments. The plaintiff
had ‘‘complete control over the various components’’
of his compensation and could ‘‘reallocate’’ them as he
desired.17 The plaintiff received no compensation for
giving up the last five years of the 2015 contract. In
January, 2021, the board of directors of the synagogue
informed the plaintiff that it would not renew the one
year 2020 contract because he had refused to address
certain concerns of the congregation with respect to
ritual observances during the COVID-19 pandemic that
the board had identified in a survey. The plaintiff has
not searched for new employment and does not intend
to seek further employment. The trial court found that
this conduct demonstrated ‘‘an effort by the plaintiff to
reduce his financial liability to the [defendant] in the
wake of this [marital] dissolution . . . action.’’ The
trial court further found that the plaintiff’s then gross
earning capacity was $202,100, which reflects the value
of the 2020 contract.
With respect to the defendant, the trial court found
that, at the time of dissolution, she was sixty-one years
old and was ‘‘educated and trained as an attorney.’’ The
defendant was unemployed at the time of trial and had
not worked as an attorney since 2015. The trial court
found that, despite her ‘‘extraordinary efforts’’ to find
employment, the defendant had been unsuccessful and
continued to receive ‘‘unemployment compensation
and [to earn] minimal funds as an infrequent babysit-
ter.’’ The trial court found that the defendant had been
very supportive of the plaintiff during their marriage,
as she was ‘‘the main caregiver responsible for raising
the parties’ [four] children’’ and also assumed numerous
social and educational duties in her capacity as the
‘‘rabbi’s wife,’’ which ‘‘greatly enhanced the plaintiff’s
standing within the religious community, and his finan-
cial success in his long-term employment as a rabbi.’’
Observing that she carried out this role for approxi-
mately twenty-four years ‘‘without compensation for
the duties she performed,’’ the trial court found that
these ‘‘volunteer efforts increased the earning capacity
of the [plaintiff] at the expense of the defendant’s own
earning capacity. Rather than perform all of the duties
of the rabbi’s wife . . . without pay, [the defendant]
could have been devoting her time and efforts to her
own career as an attorney or as an administrator with a
nonprofit entity.’’ Accordingly, the trial court ‘‘reject[ed]
the plaintiff’s testimony that the defendant, in essence,
did not contribute to the plaintiff’s career as a rabbi.’’
Crediting ‘‘some, but not all,’’ of the testimony of Jeffrey
D. Joy, a vocational rehabilitation counselor presented
as an expert witness by the plaintiff, the trial court
found that the defendant’s ‘‘gross weekly earning capac-
ity [was] $480,’’ which reflected her ability to secure
nonprofessional, full-time employment at a wage of $12
per hour.18
Given those findings, the trial court considered the
statutory factors set forth in §§ 46b-81 and 46b-82 and
issued numerous financial orders. First, the court
ordered the plaintiff to pay the defendant alimony in
the amount of $5000 per month for a period of fifteen
years, with the plaintiff precluded from seeking modifi-
cation based on the defendant’s increased earnings,
‘‘unless [her] yearly gross earnings total $50,000 or
more.’’
Turning to property division, the trial court awarded
the plaintiff sole possession and ownership of the mari-
tal home in New Haven, which it valued at $273,500.19
The court then found that the plaintiff ‘‘possesse[d] an
ownership interest in Westview . . . from which he
[had] received yearly distributions since approximately
1997; the amount of the distributions [had] varied. West-
view . . . was established in 1994 by [family members
of the plaintiff]. The funds received by the parties from
the [Westview] distributions were used as part of the
parties’ regular budget, particularly for retirement sav-
ings. The court [found] that the annual distributions
[were] not mere expectancies but constitute[d] marital
property subject to division.’’ The court ordered that
the plaintiff would retain his interest in Westview but
must pay the defendant 25 percent of the net, after tax
amount of any distributions that he received from that
ownership interest, including its sale.
With respect to the parties’ various financial accounts,
the trial court evenly divided the parties’ bank and bro-
kerage accounts. The court also awarded the defendant
55 percent and the plaintiff 45 percent of the parties’
various retirement accounts. The court ordered that a
Bank of America financial liability listed on the defen-
dant’s financial affidavit be paid equally by both parties.
Finally, the court ordered that existing college savings
accounts created for the benefit of the parties’ two
older children be used toward the educational expenses
of the remaining minor child, and ordered the plaintiff
to pay 75 percent, and the defendant 25 percent, of any
remaining postmajority educational expenses up to the
‘‘University of Connecticut cap’’ amount provided by
General Statutes § 46b-56c (g).20
Before turning to the plaintiff’s specific challenges
to the financial orders, we observe that the ‘‘standard
of review in family matters is well settled. An appellate
court will not disturb a trial court’s orders in domestic
relations cases unless the court has abused its discre-
tion or it is found that it could not reasonably conclude
as it did, based on the facts presented. . . . It is within
the province of the trial court to find facts and draw
proper inferences from the evidence presented. . . .
In determining whether a trial court has abused its
broad discretion in domestic relations matters, we
allow every reasonable presumption in favor of the
correctness of its action. . . . [T]o conclude that the
trial court abused its discretion, we must find that the
court either incorrectly applied the law or could not
reasonably conclude as it did. . . . Appellate review
of a trial court’s findings of fact is governed by the
clearly erroneous standard of review. . . . A finding
of fact is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) Powell-Ferri v. Ferri, 326 Conn.
457, 464, 165 A.3d 1124 (2017).
Further, ‘‘[w]e have repeatedly recognized that [i]n
determining the assignment of marital property under
§ 46b-81 or alimony under § 46b-82, a trial court must
weigh the station or standard of living of the parties in
light of other statutory factors such as the length of the
marriage, employability, liabilities and needs of each
of the parties and the opportunity of each for future
acquisition of capital assets and income.’’ (Internal quo-
tation marks omitted.) Id., 467. Particularly with respect
to alimony, the ‘‘trial court does not need to give each
factor equal weight or make express findings as to each
factor, but it must consider each factor. . . . In addi-
tion, it is a long settled principle that the defendant’s
ability to pay is a material consideration in formulating
financial awards. . . . Finally, the trial court’s financial
orders must be consistent with the purpose of alimony:
to provide continuing support for the nonpaying spouse,
who is entitled to maintain the standard of living
enjoyed during the marriage as closely as possible. . . .
When exercising its broad, equitable, remedial powers
in domestic relations cases, a court must examine both
the public policy implicated and the basic elements of
fairness.’’ (Citations omitted; internal quotation marks
omitted.) Oudheusden v. Oudheusden, 338 Conn. 761,
769, 259 A.3d 598 (2021).
Accordingly, we now turn to the plaintiff’s claim that
the financial orders are (1) based on a clearly erroneous
factual finding as to his earning capacity, and (2) an
abuse of discretion, insofar as the trial court awarded
the defendant alimony in the amount of $5000 monthly
for a fifteen year period and 25 percent of any future
Westview distributions.
A
We begin with the plaintiff’s claim that the trial court’s
financial orders are based on a clearly erroneous factual
finding, namely, that he has a gross ‘‘earning capacity
of $202,100 for fifteen years.’’ Citing, among other cases,
Weinstein v. Weinstein, 280 Conn. 764, 911 A.2d 1077(2007), the plaintiff contends that the there was no
evidence regarding his employability and likely future
compensation following the synagogue’s decision not
to renew his employment contract. The plaintiff further
argues that the trial court incorrectly found that he
had voluntarily terminated his employment contract
through the year 2025 without consideration insofar as
it lacked terms of compensation, rendering it unen-
forceable. The plaintiff also argues that, when the trial
court found that the defendant’s age is ‘‘a substantial
limiting factor in her ability to obtain professional
employment,’’ it erroneously failed to make a coordi-
nate finding regarding the plaintiff’s ‘‘ability to obtain
employment in light of his age,’’ which is only two years
less than that of the defendant.
In response, the defendant cites Schmidt v. Schmidt,
180 Conn. 184, 429 A.2d 470 (1980), Boyne v. Boyne,
112 Conn. App. 279, 962 A.2d 818 (2009), and Hart v.
Hart, 19 Conn. App. 91, 561 A.2d 151, cert. denied, 212
Conn. 813, 565 A.2d 535 (1989), and argues that the trial
court properly used the plaintiff’s final gross compensa-
tion in the amount of $202,100 as a basis for its finding
as to his earning capacity, particularly given the trial
court’s ‘‘explicit’’ discrediting of his testimony and its
finding that he had made efforts to diminish his earnings
in an attempt to influence his anticipated alimony obli-
gation. Noting that the plaintiff did not raise issues
concerning the enforceability of his contract at trial, the
defendant emphasizes that there was ample evidence
of the plaintiff’s future employability, including the
efforts of the synagogue to engage in a routine renegoti-
ation of his compensation under the 2015 contract,
which would have kept him employed through 2025
had he not ‘‘maneuvered out of’’ it during trial. We agree
with the defendant and conclude that the trial court
properly exercised its discretion when it relied on the
plaintiff’s earning capacity in issuing its financial orders
and that its finding that he had a gross earning capacity
of $202,100 was not clearly erroneous.
In considering the statutory factors governing ali-
mony, child support, and the equitable distribution of
marital property; see General Statutes §§ 46b-81 and
46b-82; it ‘‘is well established that the trial court may
under appropriate circumstances in a marital dissolu-
tion proceeding base financial awards on the earning
capacity of the parties rather than on actual earned
income. . . . Earning capacity, in this context, is not
an amount [that] a person can theoretically earn, nor
is it confined to actual income, but rather it is an amount
[that] a person can realistically be expected to earn
considering such things as his [or her] vocational skills,
employability, age and health.’’ (Citation omitted; inter-
nal quotation marks omitted.) Weinstein v. Weinstein,
supra, 280 Conn. 772; see, e.g., Tanzman v. Meurer,
309 Conn. 105, 113–14, 70 A.3d 13 (2013). Although
‘‘we never have required a finding of bad faith before
imputing income based on earning capacity’’; Weinstein
v. Weinstein, supra, 772; ‘‘[w]hen determining earning
capacity, it . . . is especially appropriate for the court
to consider whether [a person] has wilfully restricted
his [or her] earning capacity to avoid support obliga-
tions.’’ (Internal quotation marks omitted.) Tanzman
v. Meurer, supra, 114; see, e.g., Schmidt v. Schmidt,
supra, 180 Conn. 189–90; see also Boyne v. Boyne, supra,112 Conn. App. 283 (‘‘when a person is, by education and
experience, capable of realizing substantially greater
earnings simply by applying himself or herself, the court
has demonstrated a willingness to frame its orders on
capacity rather than actual earnings’’ (internal quota-
tion marks omitted)). Finally, ‘‘when a trial court has
based a financial award . . . on a party’s earning
capacity, the court must determine the specific dollar
amount of the party’s earning capacity.’’ Tanzman v.
Meurer, supra, 117. Awards of alimony and support that
are based on earning capacity must be supported by
evidence that includes ‘‘specific amounts’’ of past earn-
ings, or of vocational evidence as to ‘‘the typical salary’’
of the imputed party’s occupation considering that party’s
‘‘ability and experience.’’ Schmidt v. Schmidt, supra,190–91.
We conclude that the trial court’s finding that the
plaintiff had a gross earning capacity of $202,100, which
formed the basis for the fifteen year alimony order, was
not clearly erroneous. First, the recency of the plaintiff’s
unemployment, along with the lack of any evidence as
to inability or efforts to obtain employment and evi-
dence of his desire to renegotiate the terms of his
employment to gain an advantage in this litigation, sup-
ports the trial court’s decision to make an award based
on his earning capacity. See Boyne v. Boyne, supra, 112
Conn. App. 282–84 (trial court did not commit clear
error in finding that husband had earning capacity of
$100,000 per year, even though ‘‘he was unemployed at
the time of the dissolution, and his average income
for the prior three years was approximately $41,000,’’
because he was licensed electrical engineer, his last
annual salary in that position was $100,000, with earn-
ings as high as $127,000, and his unsuccessful ongoing
job search did ‘‘not necessarily mean that his earning
capacity [had] been diminished’’); Elia v. Elia, 99 Conn.
App. 829, 833–35, 916 A.2d 845 (2007) (trial court did
not commit clear error in concluding that husband’s
earning capacity was greater than his actual income
because of evidence that he voluntarily left his construc-
tion foreman position, and that wife’s earning capacity
was less than her income at trial because she had failed
to pass practical nursing examination, which resulted
in change to her employment classification); Hart v.
Hart, supra, 19 Conn. App. 94 (in calculating child sup-
port and alimony, trial court properly relied on hus-
band’s $39,000 salary in his last position as quality con-
trol engineer, rather than his $8000 in earnings each
year since leaving that position for cutting lawns, when
he had ‘‘had only two job interviews for quality control
positions’’ in two year period, meaning that he had ‘‘a
demonstrated earning capacity much greater than his
actual earned income’’).
Indeed, evidence of the plaintiff’s employability was
provided by the testimony of Yaron Lew, the president
of the synagogue’s board of trustees. Lew testified that
the synagogue initially had no intention of replacing
the plaintiff; in an email to the plaintiff urging him to
begin the compensation renegotiation process under
the 2015 contract for the second five years, Lew stated
that the board did not anticipate ‘‘any issues with the
extension of the contract’’ because the synagogue was
‘‘not looking to replace [its] beloved [r]abbi . . . .’’
Indeed, even after the termination of the 2020 contract,
the plaintiff declined an offer that would have allowed
him to remain employed beyond the end of the 2020
contract, to lead High Holiday services, and then to
receive a farewell celebration of his tenure and service
to the synagogue. Further, the plaintiff testified at trial
that he was contemplating retirement following the
expiration of the 2020 contract in August, 2021, and
had not yet initiated a search for a new position.21
Moreover, in the absence of vocational evidence as to
his reduced employability or earning capacity resulting
from his age or the termination of his employment22—
which the plaintiff himself could have, but did not,
proffer—the trial court reasonably relied on his total
contracted gross compensation of $202,100 from the
final year of his employment with the synagogue, com-
mencing on July 1, 2020, and terminating on August 14,
2021, which was allocated across different components,
including base salary, retirement benefits, and a parson-
age allowance. See footnote 17 of this opinion. Reliance
on that final gross amount for earning capacity was
supported by the fact that the plaintiff asked the syna-
gogue to renegotiate the ten year, 2015 contract to this
one year contract on March 30, 2020, which was during
the pendency of this action. Indeed, the trial court spe-
cifically declined to credit the plaintiff’s testimony that
he renegotiated the 2015 contract to a one year term
because he believed that it was inappropriate to attempt
to fix compensation for longer than a one year period
given the economic uncertainty and difficulty presented
by the start of the COVID-19 pandemic in March, 2020.
To the contrary, Lew, the president of the synagogue’s
board, testified about unsuccessful efforts to get the
plaintiff to negotiate the terms of his compensation for
the second half of the 2015 contract in accordance
with that agreement’s compensation clause, but that
the plaintiff had indicated in January, 2020, that he
desired a one year term and reduced flexibility across
compensation categories on the advice of counsel dur-
ing the pendency of this litigation. See Steller v. Steller,
181 Conn. App. 581, 590–92, 187 A.3d 1184 (2018) (trial
court’s finding that dentist had earning capacity less
than his current income was ‘‘amply justified’’ given his
age and plans to reduce his work schedule in light of
settlement agreement that contemplated retirement at
age of sixty-five, and his neck and back ailments follow-
ing forty years of dental practice); see also id., 593–95
(finding as to reduced gross earning capacity was not
supported by evidence because it accounted only for
wage income and not other income sources); cf.
Schmidt v. Schmidt, supra, 180 Conn. 190–91 (reversing
alimony and child support order based on husband’s
earning capacity as commodities broker, despite evi-
dence that he had ‘‘earned a substantial income in the
past,’’ because ‘‘there was no evidence of the [hus-
band’s] past salary as a commodities broker, or of the
typical salary of a commodities broker of the [hus-
band’s] ability and experience’’ (footnote omitted)).
Accordingly, we conclude that the trial court’s finding
that the plaintiff had a gross earning capacity of
$202,100 was not clearly erroneous.
B
We next address the plaintiff’s claims that the trial
court abused its discretion in issuing certain financial
orders that ‘‘have no basis in [his] current financial
circumstances,’’ including orders that he pay the defen-
dant (1) 25 percent of any distributions that he receive
from the Westview apartment trust, and (2) alimony in
the amount of $5000 per month for fifteen years.23
1
We begin with the plaintiff’s Westview claims. The
plaintiff relies on Bender v. Bender, 258 Conn. 733, 785
A.2d 197 (2001), Bornemann v. Bornemann, 245 Conn.
508, 752 A.2d 978 (1998), and Rubin v. Rubin, 204 Conn.
224, 527 A.2d 1184 (1987), and contends that the West-
view distributions are ‘‘mere expectancies,’’ akin to an
inheritance, which is not property subject to division
under § 46b-81 because he was a limited partner in
Westview, with no management role and no enforceable
right to receive any distributions. The plaintiff also chal-
lenges the trial court’s failure to attach a present value
to the Westview distributions and its decision instead
to award the defendant 25 percent of those distributions
in perpetuity. In response, the defendant argues that
the trial court’s division of the Westview distributions
is consistent with the parties’ stipulation characterizing
them as property, as well as the plaintiff’s then existing
right to share in Westview’s profits as a limited partner,
the regularity with which he received those distribu-
tions during the parties’ marriage, and the ‘‘present divi-
sion method of deferred distribution’’ of assets, as
described in Bender. We agree with the defendant and
conclude that the trial court did not abuse its discretion
in ordering the plaintiff to pay to the defendant 25
percent of his Westview distributions.
Having reviewed the record, we observe that the par-
ties stipulated before trial that, although they disagreed
as to the value of the plaintiff’s interest in Westview,24
they agreed that ‘‘the [plaintiff’s] interest in [Westview
was] not directly transferable to the [defendant]’’ and
that, ‘‘[w]ith respect to any distributions of any kind
that are received by the [plaintiff], the court shall have
the right to make a determination as to what portion/
percentage of such distributions the [defendant] is enti-
tled. . . . [I]n their respective proposed orders, the
[defendant] claim[ed] [that] she [was] entitled to 50
[percent] and the [plaintiff] claim[ed] [that] she [was]
entitled to zero.’’25 The parties further agreed that, if
the court were to order ‘‘any sharing of the [Westview]
distribution(s) as contemplated herein, the [plaintiff]
shall not be ordered to buy out the [defendant’s] interest
in [Westview] as part of the distribution at the time of
the divorce; rather, within ten . . . days of the [plain-
tiff’s] receipt of any payment/distribution of any kind
from [Westview], he shall pay to the [defendant] her
appropriate share of such payment/distribution.’’
According to the plaintiff’s financial affidavit, at the
time of trial, he received income from Westview distri-
butions in the amount of $433 gross weekly, although
statements and tax documents concerning his Westview
interest indicated that those distributions fluctuated
annually in amount.
Given the parties’ stipulation that the Westview distri-
butions are property subject to equitable distribution,26
we conclude that the trial court did not abuse its discretion
in awarding the defendant 25 percent of those distribu-
tions. This award is consistent with the ‘‘present divi-
sion method of deferred distribution,’’ which, along with
‘‘the present value method, also called the immediate
offset method . . . and . . . the reserved jurisdiction
method,’’ is one of ‘‘three general approaches to address
the problems of valuation and distribution’’ of nonliquid
assets, such as pension benefits. Bender v. Bender,
supra, 258 Conn. 754; see id., 754–61 (providing detailed
description of three general approaches); id., 761–62
(‘‘expressly reject[ing] . . . the reserved jurisdiction
method’’ as inconsistent with statutory scheme govern-
ing dissolution of marriage).
‘‘Under the present division method, the trial court
determines at the time of trial . . . the percentage
share of the [nonliquid assets] to which the nonem-
ployee spouse is entitled. . . . In other words, the
court will declare that, upon maturity, a fixed percent-
age of the pension be distributed to each spouse.’’
(Internal quotation marks omitted.) Id., 758; see, e.g.,
Ingles v. Ingles, 216 Conn. App. 782, 807–10, 286 A.3d
908 (2022) (given absence of evidence as to present
value, trial court was not required to calculate present
value of pensions when it utilized present division
method and ordered each party to retain 100 percent
interest in their own pension); Kent v. DiPaola, 178
Conn. App. 424, 440–41, 175 A.3d 601 (2017) (trial court
did not improperly fail to credit testimony of husband’s
pension actuary as to present value of pensions because
court had discretion to use present division method of
valuation and distribution). Thus, viewed in the context
of the remainder of the financial orders, the trial court
did not abuse its discretion in awarding the defendant
25 percent of the future Westview distributions.
2
Finally, we turn to the plaintiff’s alimony claims. First,
citing, among other cases, Greco v. Greco, 275 Conn.
348, 880 A.2d 872 (2005), and Pellow v. Pellow, 113 Conn.
App. 122, 964 A.2d 1252 (2009), the plaintiff argues that
(1) the alimony award was unduly punitive relative to
his limited resources, (2) the award failed to consider
his ‘‘lack of income after losing the only job he had held
for twenty-eight years and his prospects of obtaining
comparable employment in the future,’’ particularly
given his age, and (3) the trial court did not adequately
explain the justification for its fifteen year duration.
The plaintiff also contends that the trial court violated
well established case law requiring that the alimony
award be based on his available net income, rather than
his gross income or earning capacity. See, e.g., Morris
v. Morris, 262 Conn. 299, 306, 811 A.2d 1283 (2003);
Langley v. Langley, 137 Conn. App. 588, 600–601, 49
A.3d 272 (2012); Cleary v. Cleary, 103 Conn. App. 798,
801–802, 930 A.2d 811 (2007).
In response, the defendant argues that the trial court
did not abuse its discretion in issuing the alimony order.
First, she relies on the Appellate Court’s decisions in
Fronsaglia v. Fronsaglia, 202 Conn. App. 769, 246 A.3d
1083 (2021), and Leonova v. Leonov, 201 Conn. App.
285, 242 A.3d 713 (2020), cert. denied, 336 Conn. 906,
244 A.3d 146 (2021), in support of the proposition that
the trial court’s failure to expressly state that it consid-
ered the plaintiff’s net income does not mandate rever-
sal, especially given the court’s express consideration
of the statutory factors and the fact that the memoran-
dum of decision indicated that the plaintiff’s net income
was ‘‘accurately reflected in [his] financial affidavit.’’
The defendant then argues that the $5000 monthly
award was not an abuse of discretion because there was
no evidence that the plaintiff could not find employment
commensurate with his earning capacity, and the evi-
dence demonstrated instead that the plaintiff had—at
the time of trial—elected not to search for new employ-
ment. She also emphasizes that, during the marriage,
her supportive and expansive role in the synagogue
community as the rabbi’s wife led to an increase the
plaintiff’s earning capacity ‘‘at the expense of her own
. . . .’’ See, e.g., Hornung v. Hornung, 323 Conn. 144,
162, 146 A.3d 912 (2016). Finally, the defendant cites
cases such as Watrous v. Watrous, 108 Conn. App. 813,
816, 949 A.2d 557 (2008), and argues that, because the
alimony order was approximately 37 percent of the
plaintiff’s net income as consistent with his gross earn-
ing capacity, it was not an abuse of discretion in the
context of the parties’ thirty year marriage, particularly
because it was time limited and modifiable in compari-
son to the lifetime awards that have been upheld in
similar cases. We agree with the defendant and con-
clude that the trial court did not abuse its discretion
in ordering the plaintiff to pay the defendant alimony
in the amount of $5000 per month for fifteen years.
a
We begin with the plaintiff’s contention that the trial
court improperly based its alimony award on his gross
earning capacity, rather than the net amount. ‘‘It is well
settled that a court must base child support and alimony
orders on the available net income of the parties, not
gross income.’’ Morris v. Morris, supra, 262 Conn. 306;
see, e.g., Tobey v. Tobey, 165 Conn. 742, 747, 345 A.2d
21 (1974) (observing that ‘‘[g]ross earnings is not a
criterion for awards of alimony’’ and that ‘‘[i]t is the
net income . . . [that] is available . . . [that] the
court must consider’’). The requirement that financial
orders be based on net amounts also extends to those
orders that are based on earning capacity. See Birkhold
v. Birkhold, 343 Conn. 786, 809–10, 276 A.3d 414 (2022).
A trial court’s reference to a party’s gross income or
earning capacity by itself will not, however, trigger a
reversal. A well established line of post-Morris Appel-
late Court case law holds that a trial court’s failure ‘‘to
state explicitly that an award for alimony is based on
net income . . . does not automatically negate the
validity of the award on appeal when there is ample
evidence from which the court could have determined
the parties’ net income.’’ Fronsaglia v. Fronsaglia,
supra, 202 Conn. App. 783. Although ‘‘support and ali-
mony orders must be based on net income, the proper
application of this principle is context specific. . . .
[W]e differentiate between an order that is a function
of gross income and one that is based on gross income.
. . . [T]he term based as used in this context connotes
an order that . . . takes into consideration [only] the
parties’ gross income and not the parties’ net income.
Consequently, an order that takes cognizance of the
parties’ disposable incomes may be proper even if it is
expressed as a function of the parties’ gross earnings.’’
(Emphasis added; internal quotation marks omitted.)
Leonova v. Leonov, supra, 201 Conn. App. 300. Applying
this ‘‘function’’ principle, the Appellate Court ‘‘has over-
looked the failure of the trial court to make a finding
as to a party’s net income . . . . [The Appellate Court
has] concluded that such an omission does not compel
the conclusion that the court’s order was improperly
based on gross income if the record indicates that the
court considered evidence from which it could deter-
mine a party’s net income, and it did not state that it
had relied on the party’s gross earnings to form the
basis of its order.’’27 Id.Ultimately, we understand this line of case law essen-
tially to be one of harmless error, which is consistent
with the maxim that we read trial court memoranda of
decision to presume that the trial court exercised its
discretion in accordance with the governing law. See,
e.g., Hughes v. Hughes, 95 Conn. App. 200, 207–208,
895 A.2d 274, cert. denied, 280 Conn. 902, 907 A.2d 90(2006). Put differently, if the trial court’s memorandum
of decision reasonably can be understood to base the
alimony award on net income, we will view the exercise
of its discretion accordingly and uphold the alimony
award if it is not an abuse of the court’s discretion with
respect to the net amounts available. See Greco v. Greco,
82 Conn. App. 768, 773, 847 A.2d 1017 (2004) (conclud-
ing that trial court improperly based alimony order on
gross income because, although it ‘‘did not ‘affirma-
tively and expressly’ state that it relied on the parties’
gross incomes in determining its alimony order,’’
income amount stated was ‘‘equal to the [husband’s]
gross income as stated in his financial affidavit,’’ ali-
mony amount was ‘‘precisely 50 percent of the [hus-
band’s] gross income,’’ and alimony and other expenses
ordered ‘‘far exceeded his available net income,’’ as
stated on financial affidavits), aff’d, 275 Conn. 348, 880
A.2d 872 (2005); see also Birkhold v. Birkhold, supra,
343 Conn. 810 (upholding modified alimony award that
was based ‘‘not only on the [husband’s] past gross earn-
ings,’’ but also on his ‘‘net earning capacity [of]
$250,000, which [was] markedly less than his past gross
annual income of $350,000’’ (emphasis added)).
Thus, we now turn to the record in the present case.
The plaintiff accurately observes that the trial court’s
only specific finding as to the plaintiff’s earning capacity
is expressed in terms of gross earning capacity, which
is consistent with his most recent gross earnings from
employment. The memorandum of decision, however,
expressly states that the plaintiff’s ‘‘net weekly income,
assets, liabilities and expenses are accurately reflected
in the plaintiff’s financial affidavit.’’ (Emphasis added.)
Moreover, the memorandum of decision does not
expressly state that the gross amount, rather than the
net amount, furnishes the basis for the alimony calcula-
tions. Although it would have been better practice for
the trial court’s memorandum of decision to have
included an express finding concerning the plaintiff’s
net earning capacity; see Birkhold v. Birkhold, supra,
343 Conn. 810; we nevertheless cannot conclude that
the exercise of its discretion was based on a misstate-
ment of the law.
The arithmetic underlying the trial court’s specific
orders in this case also supports application of the
presumption that the trial court exercised its discretion
in accordance with the governing law. Specifically, the
trial court’s memorandum of decision states that the
plaintiff’s gross earning capacity was $202,100, which
was consistent with his most recent gross income from
employment by the synagogue as reflected on his finan-
cial affidavit. His net weekly income on the financial
affidavit was $3583, which, as the defendant argues,
would be consistent with a net annual earning capacity
of approximately $162,000. A $5000 per month alimony
award is approximately 37 percent of that net amount,
which is not a percentage that—on its face—suggests
an abuse of discretion relative to the earning capacity
on which it is based.
b
Finally, we consider whether the alimony award is
itself an abuse of discretion when viewed in light of the
plaintiff’s ability to pay. The alimony award is consistent
with the trial court’s express reliance on the defendant’s
drastically reduced earning capacity relative to that of
the plaintiff, given that, at the time of trial, she was
earning only $12 per hour at a part-time job, and the
trial court declined to credit Joy’s opinion that she had
an earning capacity of $55,000 in the legal or nonprofit
fields given her inability to secure professional employ-
ment after multiple attempts. See Powell-Ferri v. Ferri,
supra, 326 Conn. 465–66 (trial court was permitted to
consider husband’s ‘‘ability to earn additional income’’
and wife’s ‘‘ ‘severely limited’ ’’ ability to acquire future
assets in ordering alimony, while also ‘‘award[ing] sub-
stantially more of the marital assets to [the wife] including
the marital home’’). Indeed, the trial court aptly recog-
nized the defendant’s contributions to the marriage and
to the plaintiff’s professional success given her distinct
role as the rabbi’s wife, which is consistent with the
principle that, ‘‘[w]hen the disadvantaged spouse’s efforts
increased the other’s earning capacity at the expense
of [his or] her own, he or she is entitled to sufficient
alimony to ensure the continued enjoyment of [that]
standard of living . . . .’’ (Internal quotation marks
omitted.) Hornung v. Hornung, supra, 323 Conn. 162.
Second, given that the cash assets were split evenly
and that the plaintiff received the marital home, 45
percent of the retirement accounts, and 75 percent of
the Westview distributions, the trial court’s alimony
order is not ‘‘irreconcilable with the principle that ali-
mony is not designed to punish, but to ensure that the
former spouse receives adequate support. . . . [I]t is
hornbook law that what a spouse can afford to pay for
support and alimony is a material consideration in the
court’s determination as to what is a proper order
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Greco v. Greco, supra, 275 Conn. 361–62. Com-
pare id., 350, 352–53, 362–63 (it was abuse of discretion
to award wife 98.5 percent of marital estate, including
shares in husband’s business, while ordering weekly
alimony, attorney’s fees and life insurance coverage,
which left husband with annual net income deficit),
Onyilogwu v. Onyilogwu, 217 Conn. App. 647, 655–57,
289 A.3d 1214 (2023) (reversal was required when ten
year alimony award was based on temporary pandemic
unemployment benefits, the subtraction of which meant
that ‘‘the court’s order requiring the [husband] to pay
$1500 per month in alimony would consume most of
[his] income,’’ and there was no finding that his earning
capacity reflected that higher amount), Valentine v.
Valentine, 149 Conn. App. 799, 806–808, 90 A.3d 300(2014) (financial orders that stripped husband of marital
home, required him to pay his and wife’s attorney’s
fees and imposed alimony and child support obligations
constituting more than 80 percent of his net income
were abuse of discretion in absence of identification
of assets that he could use to comply), and Pellow v.
Pellow, supra, 113 Conn. App. 124, 128–29 (financial
orders, including periodic alimony award of $4500 per
month, were abuse of discretion when husband’s obliga-
tion amounted to ‘‘more than 90 percent of [his] income
as determined by the court’’), with M. S. v. P. S., 203
Conn. App. 377, 391, 248 A.3d 778 (support and vehicle
payment orders leaving husband with only 10 percent of
weekly net income were not excessive because alimony
was limited to period of six years, and husband received
‘‘substantial assets in the dissolution’’ totaling 50 per-
cent of marital estate—including bank accounts, stocks,
proceeds from sale of marital home, and foreign real
estate—that ‘‘he could [have] use[d] to comply with the
court’s support orders and to sustain his basic welfare,’’
which was consistent with parties’ financial practice of
using assets to meet their expenses during their mar-
riage), cert. denied, 336 Conn. 952, 251 A.3d 992 (2021),
and Salzbrunn v. Salzbrunn, 155 Conn. App. 305, 318,
109 A.3d 937 (child support and alimony awards that
constituted approximately 50 percent of husband’s net
income were ‘‘not confiscatory or blatantly inequita-
ble’’), cert. denied, 317 Conn. 902, 114 A.3d 166 (2015).
Finally, the trial court expressly recognized that the
parties’ financial circumstances might evolve, insofar
as it emphasized that the order was subject to modifica-
tion as to term and amount, unless that claimed modifi-
cation was to be based on the defendant’s increased
earnings, which would then have to be $50,000 or more.
See Birkhold v. Birkhold, supra, 343 Conn. 810 (noting
that trial court expressly provided ‘‘a ‘second look’ ’’
for modified alimony award when husband reached age
of sixty-five); cf. Oudheusden v. Oudheusden, supra,
338 Conn. 776–77 (observing that ‘‘nonmodifiable, life-
time alimony awards are strong medicine’’ in reversing
permanent, nonmodifiable award on ground that, ‘‘[t]o
the extent that the [trial] court did consider’’ husband’s
age, health, or earning potential in entering that award,
‘‘it could not reasonably have concluded on [the] record
that the [husband] would continue to earn, at a mini-
mum, the same income for the rest of his life’’). Bearing
in mind that the ‘‘generally accepted purpose of . . .
alimony is to enable a spouse who is disadvantaged
through divorce to enjoy a standard of living commensu-
rate with the standard of living during marriage’’; (inter-
nal quotation marks omitted) Brody v. Brody, 315 Conn.
300, 313, 105 A.3d 887 (2015); and that this is not an
order that ‘‘forced [the plaintiff] to the brink of abject
poverty by his obligations . . . and then stripped [him]
of any means with which to pay them by the dispropor-
tionate division of the marital assets’’; Greco v. Greco,
supra, 275 Conn. 363; we conclude that the trial court’s
alimony order, when considered in light of the plaintiff’s
net earning capacity, was not an abuse of its discretion.
The judgment is affirmed.
In this opinion the other justices concurred.
1
See, e.g., L. Warmflash, ‘‘The New York Approach to Enforcing Religious
Marriage Contracts: From Avitzur to the Get Statute,’’ 50 Brook. L. Rev.
229, 232–33 and n.8 (1984); J. Solovy, Comment, ‘‘Civil Enforcement of
Jewish Marriage and Divorce: Constitutional Accommodation of a Religious
Mandate,’’ 45 DePaul L. Rev. 493, 495–96 (1996).
2
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
3
All references to the trial court with respect to the plaintiff’s first amend-
ment claims, which are addressed in part I of this opinion, are to the
court, Klau, J. All references to the trial court with respect to the plaintiff’s
challenges to the financial orders, which are addressed in part II of this
opinion, are to the court, Goodrow, J.
4
The plaintiff filed a copy of the ketubah and the following English transla-
tion, which was performed by the plaintiff himself. Although the translation
was not performed by a disinterested party or a certified translator, we,
like the trial court, observe that it is undisputed for purposes of this appeal.
‘‘On the first day of the week [Sunday], the fifteenth day of the month of
Kislev in the year 5750 from the creation of the world as we know it
[December 3, 1989], in Wynnewood, Pennsylvania, North America:
‘‘The groom [the plaintiff] . . . said to the first-time bride [the defendant],
‘[b]e my wife according to the laws of Moses and Israel, and I will honor,
cherish, feed and support you according to the way of Jewish men who
honor, cherish, feed and support their wives uprightly, and I give you a
bride-price for a first-time bride of 200 silver Zuzim as is appropriate for
you according to [b]iblical Law, as well as food, clothing and support and
companionship in the manner of all creation’; and [the defendant], the first-
time bride, declared that she will be his wife, and the dowry that she brings
him from her father’s estate, whether in silver or gold, jewelry, garments,
household utensils or bedding, was all acceptable to [the plaintiff] in consid-
eration for one hundred silver Zequqim;
‘‘And the [plaintiff] added to this from his own resources an additional
[one hundred] silver Zequqim corresponding to the dowry, for a total of 200
silver Zequqim;
‘‘And thus said [the plaintiff], ‘[t]he obligations of this written marriage
contract, the dowry, and the additional amount I accept upon myself and
upon my heirs after me, that it may be collected from any or all of the best
of my properties, and from any possessions that I may have anywhere,
whether I own them now, at the time of collection or will acquire them
in the future, from properties that are encumbered or unencumbered; all
properties and possessions may be collected from for payment from me of
this written marriage contract, dowry, and additional amount, even the coat
off my back, during my lifetime and after my death, from this day forth and
forevermore.’
‘‘And the obligations and substance of this written marriage contract,
dowry and additional amount were accepted by [the plaintiff] with the
gravity of all written marriage contracts and annexes that are customarily
given to Jewish women created by the authority of our sages of blessed mem-
ory.
‘‘And [the plaintiff], our groom, and [the defendant], agreed to divorce
[or, separate from] one another according to custom all the days of their
life [i.e., as a continuing obligation] according to Torah law as is the manner
of Jewish people. And they committed in comity and agreed to accept upon
themselves the [r]abbinic [c]ourt [the Beth Din of the Rabbinical Assembly]
to instruct them in the terms of Torah law and to be compassionate and
[to] value one another all the days of their marriage. And each of them
agreed to respond to the summons of the other to appear before [the above
referenced] [r]abbinic [c]ourt, or one mutually agreed [on], to the end that
both of them can live in compliance with Torah law all the days of their lives.
‘‘This is no mere formality [or] auxiliary document. And from [the plaintiff]
our groom to [the defendant], this first-time bride, and from [the defendant]
this first-time bride, to [the plaintiff] our groom, was transacted all that is
written and detailed above in a manner that is valid for such transactions.
All is valid and effective.’’
5
The plaintiff also filed a motion to bifurcate the consideration of the
ketubah issues from the underlying dissolution action. The defendant
objected to that motion. The trial court denied the motion to bifurcate
as moot in light of its decision to deny the plaintiff’s motion to enforce
the ketubah.
6
The trial court rejected the plaintiff’s attempt to analogize Torah law to
that of a foreign jurisdiction for choice of law purposes, observing that
‘‘[c]onstruing the civil law of a foreign jurisdiction (other than a pure theoc-
racy) does not require a court to choose between competing interpretations
of religious law.’’ The trial court further rejected the plaintiff’s reliance on
a proffered distinction within Jewish law between ‘‘laws governing the
relationship between man and God and laws governing relationships
between men [to avoid] the first amendment problem in this case.’’ The trial
court emphasized that ‘‘both categories of laws are rooted in the Torah
and other textual sources of Jewish law. Even disputes over the correct
interpretation of Jewish civil laws are disputes over the meaning and require-
ments of Jewish law. From the perspective of an American civil court—
state or federal—such disputes are inherently religious.’’
7
We note that completion of the trial in this case was delayed substantially
by the onset of the COVID-19 pandemic. The proceedings began in-person
and ultimately concluded using remote technology.
8
We note that, in its recent decision in Kennedy v. Bremerton School
District, U.S. , 142 S. Ct. 2407, 2427–28, 213 L. Ed. 2d 755 (2022),
the United States Supreme Court overruled the formerly well established
entanglement analysis of Lemon v. Kurtzman, 403 U.S. 602, 612–13, 91 S.
Ct. 2105, 29 L.Ed.2d 745 (1971), pursuant to which a challenged governmental
action, such as a policy or statute, would be upheld if it (1) had ‘‘a secular
legislative purpose,’’ (2) had a ‘‘principal or primary effect . . . that neither
advances nor inhibits religion,’’ and (3) did ‘‘not foster an excessive govern-
ment entanglement with religion.’’ (Internal quotation marks omitted.) Board
of Education v. State Board of Education, supra, 243 Conn. 783–84. ‘‘In
time, [the Lemon] approach also came to involve estimations about whether
a ‘reasonable observer’ would consider the government’s challenged action
an ‘endorsement’ of religion.’’ Kennedy v. Bremerton School District, supra,
2427. Concluding that the Lemon approach had created ‘‘warring’’ rather
than ‘‘ ‘complementary’ ’’ purposes among the three clauses of the first
amendment, namely, the establishment, free exercise, and free speech
clauses; id., 2426; the United States Supreme Court instead adopted an
establishment clause analysis that abandons what it deems to be Lemon’s
‘‘ ‘ambitiou[s]’ ’’ overreach; id., 2427; and requires consideration of the ‘‘origi-
nal meaning’’ of the establishment clause and ‘‘reference to historical prac-
tices and understandings’’ to determine whether a practice violates the
establishment clause. (Internal quotation marks omitted.) Id., 2428. Neither
the parties’ briefs nor our independent research reveals any authority indicat-
ing that the recent sea changes to the United States Supreme Court’s estab-
lishment clause jurisprudence affect the continuing vitality of the neutral
principles of law doctrine, and we continue to follow it in this case. See,
e.g., Belya v. Kapral, 45 F.4th 621, 625, 630 and n.8 (2d Cir. 2022) (noting
broad applicability of neutral principles of law approach from Jones v. Wolf,
supra, 443 U.S. 602–604, in case concerning church autonomy doctrine as
defense to defamation claims brought by priest against church), cert. denied
sub nom. Synod of Bishops of the Russian Orthodox Church Outside of
Russia v. Belya, U.S. , 143 S. Ct. 2609, L. Ed. 2d (2023).
9
For examples of the application of the neutral principles of law doctrine
in tort, property, and employment cases, compare McRaney v. North Ameri-
can Mission Board of the Southern Baptist Convention, Inc., supra, 966 F.3d
347, 349 (first amendment did not require dismissal of claims of intentional
interference with business relationships, defamation, and intentional inflic-
tion of emotional distress, despite fact that they were asserted against
religious organizations, because plaintiff was ‘‘not challenging the termina-
tion of his employment’’ or ‘‘asking the court to weigh in on issues of faith
or doctrine’’), Malicki v. Doe, 814 So. 2d 347, 352, 364 (Fla. 2002) (claims
of negligent hiring and supervision arising from sexual abuse by priest
concerned ‘‘a neutral principle of tort law,’’ namely, foreseeability of harm
to third parties), and Connor v. Archdiocese of Philadelphia, 601 Pa. 577,
579, 624–25, 975 A.2d 1084 (2009) (first amendment did not bar defamation
case arising from expulsion of student from parochial school because ‘‘neu-
tral principles’’ of state law applied to determination of whether school’s
statements that student brought weapon to school were defamatory), with
Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn.
App. 669, 689 (first amendment barred claims of defamation, breach of
contract, and negligent infliction of emotional distress because they con-
cerned plaintiff’s fitness for ordination and placement as minister), and
DeCorso v. Watchtower Bible & Tract Society of New York, Inc., 78 Conn.
App. 865, 877–78, 829 A.2d 38 (first amendment barred negligent infliction
of emotional distress claims in connection with marital advice given by
church elders that was ‘‘contrary to [the] teachings of the Jehovah’s Wit-
nesses’’), cert. denied, 266 Conn. 931, 837 A.2d 805 (2003); see also Serbian
Eastern Orthodox Diocese of the United States & Canada v. Milivojevich,
supra, 426 U.S. 717–18, 724–25 (concluding that state courts violated first
amendment by considering merits of bishop’s claim that he was defrocked
arbitrarily in violation of church tribunal’s procedures).
10
We note that the Beth Din is also called a ‘‘Bet Din,’’ ‘‘Beit Din,’’ or
‘‘Bais Din.’’ See, e.g., I. Breitowitz, ‘‘The Plight of the Agunah: A Study in
Halacha, Contract, and the First Amendment,’’ 51 Md. L. Rev. 312, 319 and
n.20 (1992); J. Zitter, Annot., ‘‘Application, Recognition, or Consideration of
Jewish Law by Courts in United States,’’ 81 A.L.R.6th 1, 30, § 4 (2013). It is
a ‘‘Jewish rabbinical court, usually composed of three rabbis. A [Beth] Din
is commonly used to decide business disputes . . . and is needed in order
to secure a religious divorce. [When] there is a dispute between two Jews,
they are supposed to turn to the [Beth] Din before going to regular courts.’’
(Footnote omitted.) J. Zitter, supra, 81 A.L.R.6th 30, § 4.
11
On this point, we note that cases concerning the enforcement of Mahr
agreements, which enforce a groom’s financial obligation to care for his
bride under Islamic law, are similarly instructive under the neutral principles
of law doctrine. See, e.g., Nouri v. Dadgar, 245 Md. App. 324, 335, 351–52,
226 A.3d 797 (2020) (Mahr requiring provision of gold coins and Quran may
be enforced ‘‘if its secular terms are enforceable under neutral principles
of contract law,’’ and antenuptial contract analysis governed its validity as
matter of state law); Odatalla v. Odatalla, 355 N.J. Super. 305, 312–13, 810
A.2d 93 (Ch. Div. 2002) (Mahr requiring payment of $10,000 was enforceable
under neutral principles of law).
12
Given the persuasive dissent in Goldman; see In re Marriage of Gold-
man, supra, 196 Ill. App. 3d 797–800 (Johnson, J., dissenting); we acknowl-
edge, but disagree with, those courts that have followed the reasoning
of the Goldman majority, along with the Avitzur majority opinion, and
specifically enforced ketubah provisions or otherwise ordered husbands to
provide their wives with a get in connection with civil divorce proceedings.
See Scholl v. Scholl, 621 A.2d 808, 810–13 (Del. Fam. 1992) (concluding that
enforcement of stipulation specifically requiring husband to obtain get did
not violate first amendment and relying on rabbis’ testimony in concluding
that husband violated that stipulation by failing to obtain Orthodox get
desired by wife, despite lack of language in stipulation specifying required
nature of get); Schneider v. Schneider, 408 Ill. App. 3d 192, 201–203, 945
N.E.2d 650 (concluding that Goldman supported trial court order directing
husband to provide wife with get in upholding trial court’s award of attor-
ney’s fees to wife as sanction for husband’s filing of frivolous pleading),
appeal denied, 955 N.E.2d 480 (Ill. 2011); Minkin v. Minkin, supra, 180 N.J.
Super. 262, 264–66 and n.4 (crediting testimony of Orthodox rabbis that
providing get is secular act, over contrary testimony of Reform rabbi, in
concluding that ‘‘the entry of an order compelling [the husband] to secure
a get’’ pursuant to broad ‘‘Moses and Israel’’ ketubah language did not
violate first amendment because it ‘‘would have the clear secular purpose
of completing a dissolution of the marriage’’ and does ‘‘not require the
husband to participate in a religious ceremony or to do acts contrary to his
religious beliefs’’); Burns v. Burns, 223 N.J. Super. 219, 223–26, 538 A.2d
438 (Ch. Div. 1987) (taking judicial notice of Encyclopedia Judaica and Bible
and requiring husband to go to Beth Din to obtain get for wife because
evidence indicated that husband was not refusing to provide get due to
sincerely held religious belief, insofar as he had already remarried and was
demanding $25,000 from wife in settlement negotiations as condition for
providing get); Mishler v. Mishler, Docket No. 05-21-00067-CV, 2022 WL
2352952, *1, *3–4 (Tex. App. June 30, 2022) (applying neutral principles of
law doctrine and concluding that enforcement of dissolution agreement
requiring wife to accept get did not violate first amendment because her
delay in meeting with rabbis for ceremony was result of COVID-19 hesitation
and was not religiously based refusal). But cf. In re Marriage of Katsap,
Docket No. 2-21-0706, 2022 WL 3038429, *19–20 (lll. App. August 2, 2022)
(distinguishing Goldman and declining to enforce ketubah that purportedly
required husband to pay $1 million to wife because of lack of ‘‘reasonable
terms established, according to expert testimony, as pertaining to Jewish
law,’’ and because of unconscionability, given husband’s minimal assets
and income).
13
Given this conclusion as to the language of the ketubah, the Arizona
court did not reach the separate issue of ‘‘whether enforcement by a court
of such a provision [specifically promising the granting of a get in a premarital
or separation agreement] would violate the [f]irst [a]mendment.’’ Victor v.
Victor, supra, 177 Ariz. 234.
14
The New Jersey court also observed in Aflalo that the provision of the
get must be voluntary as a matter of Jewish law and that requiring the
provision of the get under penalty of contempt of court would, in essence,
overrule the authority of the Beth Din. See Aflalo v. Aflalo, supra, 295 N.J.
Super. 539–40; see also id., 540–41 (endorsing Avitzur approach of using
Beth Din as alternative dispute resolution forum). Ultimately, the court in
Aflalo observed that ‘‘Minkin . . . conjures the unsettling vision of future
enforcement proceedings’’; id., 541; and that the ‘‘spectre of [the husband’s]
being imprisoned or surrendering his religious freedoms because of action
by a civil court is the very image [that] gave rise to the [f]irst [a]mendment
[issue].’’ Id., 542.
15
Under Golding, a ‘‘party can prevail on a claim of constitutional error
not preserved at trial only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error; (2) the claim is of
constitutional magnitude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and . . . deprived the defen-
dant of a fair trial; and (4) if subject to harmless error analysis, the state
has failed to demonstrate harmlessness of the alleged constitutional violation
beyond a reasonable doubt. In the absence of any one of these conditions,
the defendant’s claim will fail. The appellate tribunal is free, therefore, to
respond to the defendant’s claim by focusing on whichever condition is
most relevant in the particular circumstances. . . . The test set forth in
Golding applies in civil as well as criminal cases.’’ (Citations omitted; internal
quotation marks omitted.) Gleason v. Smolinski, 319 Conn. 394, 402 n.10,
125 A.3d 920 (2015).
16
A great deal of the commentary in this area focuses on the potential
use of Jewish law principles to influence civil divorce decrees. These com-
mentators urge parties seeking a divorce according to Jewish law principles
to execute, in accordance with applicable state laws, prenuptial agreements,
the four corners of which are facially consistent with the desired Jewish
law in a way that avoids interpretation by the state court, including by using
a Beth Din as an alternative dispute resolution forum. See, e.g., I. Breitowitz,
‘‘The Plight of the Agunah: A Study in Halacha, Contract, and the First
Amendment,’’ 51 Md. L. Rev. 312, 419–21 (1992); M. Greenberg-Kobrin, ‘‘Civil
Enforceability of Religious Prenuptial Agreements,’’ 32 Colum. J. L. & Soc.
Probs. 359, 393–94 (1999); L. Warmflash, ‘‘The New York Approach to Enforc-
ing Religious Marriage Contracts: From Avitzur to the Get Statute,’’ 50
Brook. L. Rev. 229, 253 (1984); cf. J. Haberman, Note, ‘‘Child Custody: Don’t
Worry, a Bet Din Can Get It Right,’’ 11 Cardozo J. Conflict Resol. 613, 639–41
(2010) (suggesting use of ‘‘Beth Din of America’’ prenuptial agreement and
arbitration clauses referring matters, including child custody disputes, to
Beth Din for decision that would consider both Jewish law and secular best
interest of child standard); see also Grabe v. Hokin, 341 Conn. 360, 371–74,
267 A.3d 145 (2021) (considering enforceability of antenuptial agreements
under both General Statutes § 46b-36g and McHugh v. McHugh, 181 Conn.
482, 436 A.2d 8 (1980)).
17
Specifically, the plaintiff contracted for a base salary of $58,100, a parson-
age allowance of $72,000, pension and retirement account contributions of
$45,000, reimbursement of professional expenses, such as dues, subscrip-
tions and travel, in the amount of $7000, and medical insurance premiums
for him and his family in the amount of $20,000. The synagogue also agreed
(1) to pay the standard employer’s share of Social Security and Medicare,
(2) to contribute up to $1000 annually to a life insurance policy for the
plaintiff, the defendant, or both, (3) to pay the premium for a disability
insurance policy for the plaintiff, and (4) to admit the plaintiff, his spouse,
and family members as guests to synagogue programs and services.
In contrast to the 2020 contract, the 2015 contract permitted the plaintiff
to reallocate all of the various components of his total compensation as he
wished, ‘‘as long as the sum total of those items [was] not affected and such
reallocation and redesignation [was] made and reported consistent with all
applicable tax and other laws.’’
18
The trial court rejected Joy’s testimony that the defendant had a gross
yearly earning capacity in a range of $54,000 to $69,000, given the positions
that she had held as a Social Security disability attorney, paralegal, and
nonprofit director. The court credited the defendant’s testimony and found
that, despite her ‘‘extraordinary efforts . . . she [was then] unable . . . to
obtain employment as a Social Security disability attorney, a paralegal, or
a director for a not-for-profit organization. Although the court [was] hopeful
that the defendant [would] be able to secure employment in the future in
one of these positions, the court [found] that the defendant [was] unable
to . . . obtain such employment.’’ The trial court further declined to credit
Joy’s testimony that ‘‘the defendant’s age would not be a substantial limiting
factor in her ability to obtain professional employment.’’
19
The trial court ordered the plaintiff to refinance the mortgage to remove
the defendant from any liability with respect to the mortgage and to pay
her a stipulated amount of $41,829 as her share of the home’s equity, along
with an additional payment of $24,250, which was one-half of the additional
appreciation of the home’s stipulated fair market value during the dissolution
proceedings.
20
With respect to ancillary orders, the trial court ordered the parties to
maintain their own health and medical insurance and to pay their own
attorney’s fees. Finally, the court ordered the plaintiff to maintain life insur-
ance in the amount of $500,000 for the benefit of the defendant, for so long
as he has an alimony obligation or an educational expense obligation for
the minor child. The court also granted the defendant entitlement to the
yearly tax credit for dependency for the minor child.
21
The plaintiff testified that he had not decided whether to seek new
employment as a Conservative rabbi following the expiration of his contract
in August, 2021, given the likely implications of finding a new position,
including the likelihood of having to relocate from the New Haven area and
that a job search would likely take place through the placement services
of the Conservative movement’s Rabbinical Assembly.
22
We disagree with the plaintiff’s argument that the trial court improperly
considered the defendant’s age in assessing vocational evidence as to her
earning potential but did not do the same for him. First, in contrast to the
defendant, who was unemployed after having held numerous positions in
the legal and nonprofit arenas, the plaintiff had a more stable and recent
work history. Given the recency of the plaintiff’s unemployment at the time
of trial, and the fact that he had not decided whether to seek a new position
or to retire, the trial court reasonably relied on his previous earnings in
determining his earning capacity. Accordingly, consideration of the defen-
dant’s age in assessing her earning capacity did not ipso facto render the
trial court’s determination as to the plaintiff’s earning capacity clearly errone-
ous. To the extent that the plaintiff’s age may later be deemed to interfere
with any subsequent efforts to obtain employment, he remains free to file
a motion for modification and to argue a substantial change in circumstances.
See General Statutes § 46b-86 (a).
23
Under the well established mosaic theory; see, e.g., Oudheusden v.
Oudheusden, supra, 338 Conn. 777–78; the plaintiff also challenges the trial
court’s related orders that (1) awarded the defendant 55 percent of the
parties’ retirement accounts, (2) he pay the defendant $66,079 in connection
with the distribution of the marital residence, and (3) he pay 75 percent of
the minor child’s college expenses. In response, the defendant contends
that the plaintiff’s claims with respect to the retirement accounts, the buyout
of the marital residence, and the college expenses are not reviewable because
they are inadequately briefed. Nevertheless, although the plaintiff does not
specifically challenge these orders on their individual merits, we acknowl-
edge that granting appellate relief with respect to his alimony and Westview
distribution claims necessarily would require that the other orders, which
are ‘‘interwoven,’’ be reexamined on remand as part of creating a new
‘‘mosaic . . . .’’ (Internal quotation marks omitted.) Morris v. Morris, 262
Conn. 299, 307, 811 A.2d 1283 (2003).
24
The defendant’s expert witness valued the plaintiff’s interest in Westview
‘‘and any related entities or affiliates thereto . . . at $753,000,’’ and the
plaintiff’s expert witness valued it at $589,000.
25
The parties also stipulated: (1) ‘‘If the court orders any sharing of the
distribution(s) as contemplated herein, the parties agree that they shall
share in any capital call, expenses, taxes or any such liability related thereto.
The sharing of said costs shall be in proportion to the sharing of the distribu-
tion as ordered by the court.’’ And (2) ‘‘[s]hould the court order a sharing
of the distribution as contemplated herein, for any calendar year in which
the [plaintiff] is obligated to pay the [defendant] a portion of the distributions
from [Westview], he shall provide to the [defendant] copies of K-1 forms
and any documents pertaining to receipt of any [Westview] distributions.
[The plaintiff] shall provide said documents to [the defendant] quarterly,
i.e., March 31, June 30, September 30, and December 31.’’
26
To the extent that the plaintiff challenges the trial court’s conclusion
that the Westview distributions are property subject to equitable distribution
because they are not mere expectancies, we disagree. Although the plaintiff
is a limited partner with no managerial control over any distributions, the
trial court’s conclusion is grounded in its unchallenged findings that the
parties have regularly received the Westview distributions since 1997 and
have relied on them as part of their budget, particularly as a source of
retirement savings. These findings establish that the plaintiff’s interest in the
Westview distributions is, ‘‘as a practical matter . . . sufficiently concrete,
reasonable and justifiable as to constitute a presently existing property
interest for equitable distribution purposes.’’ Bender v. Bender, supra, 258
Conn. 749; see Mickey v. Mickey, 292 Conn. 597, 628, 974 A.2d 641 (2009)
(‘‘Bender stands for the proposition that, even in the absence of a presently
enforceable right to property based on contractual principles or a statutory
entitlement, a party’s expectant interest in property still may fall under
§ 46b-81 if the conditions precedent to the eventual acquisition of such a
definitive right are not too speculative or unlikely’’); see also Mickey v.
Mickey, supra, 630–31 (husband’s interest in disability retirement benefits
was ‘‘far too speculative to be considered property subject to equitable
distribution’’ because it was contingent on disability occurring prior to age
or service requirement, and ‘‘[a] potential disability is, by its very nature,
an accidental event that every employee and employer strives to avoid’’);
Bender v. Bender, supra, 749–50 (unvested pension benefits were property
under § 46b-81, with ‘‘any uncertainty regarding vesting . . . more appropri-
ately handled in the valuation and distribution stages, rather than in the
classification stage’’); Bornemann v. Bornemann, supra, 245 Conn. 517–19
(unvested stock options were property under § 46b-81, despite contingencies
on their exercise at later dates, because they created enforceable right); cf.
Simmons v. Simmons, 244 Conn. 158, 162, 170, 708 A.2d 949 (1998) (medical
degree earned by spouse during marriage was not property under § 46b-81
because it was only opportunity to earn future income, rendering it ‘‘a mere
expectancy’’ interest); Rubin v. Rubin, supra, 204 Conn. 236–39 (expected
inheritance was too speculative to be property under § 46b-81).
27
A review of the cases is instructive given the context specific nature
of this inquiry. Compare Morris v. Morris, supra, 262 Conn. 306–307 (reversal
was required when ‘‘the [trial] court affirmatively and expressly stated that
it relied on gross income to determine available funds for support consider-
ation,’’ despite evidence in record of parties’ net income, because trial court
‘‘expressly and affirmatively stated that the [husband] ‘has the following
gross amounts [that] are properly included in his support income consider-
ation’ ’’ (emphasis in original)), Procaccini v. Procaccini, 157 Conn. App.
804, 808–11, 118 A.3d 112 (2015) (modification of alimony improperly was
based on gross income when trial court made findings as to gross income
and declined counsel’s invitation to make findings as to net income), Cleary
v. Cleary, supra, 103 Conn. App. 803–804 (alimony improperly was based
on gross income when only income stated in memorandum was equivalent
to gross of husband’s income from employment, gambling winnings, and
disability benefits, and trial court’s response to motion for clarification
stated that ‘‘it used the [husband’s] gross weekly income as well as his
gambling winnings without mention of his $28,100 in receipted gambling
losses as indicated on the parties’ 2004 joint income tax return’’), and Ludgin
v. McGowan, 64 Conn. App. 355, 358–59, 780 A.2d 198 (2001) (reversal
was required when ‘‘it appear[ed] that the court chose not to rely on . . .
information’’ about net incomes and its ‘‘memorandum of decision [was]
devoid of any mention of the parties’ net incomes’’), with Fronsaglia v.
Fronsaglia, supra, 202 Conn. App. 784–86 (upholding alimony award with
reference to gross income despite trial court’s failure to ‘‘expressly state
that it considered the [husband’s] net income’’ given ‘‘[the inference] that
the court considered the relevant statutory factors and all of the evidence
submitted by the parties’’ and references in memorandum of decision to
financial affidavits that reflected ‘‘total net weekly income’’), Leonova v.
Leonov, supra, 201 Conn. App. 300–301 (upholding financial orders that
made reference only to gross numbers because trial court ‘‘did not expressly
state that it was relying solely on gross earnings in framing its order’’ and,
instead, stated that it considered all relevant statutes, testimony of parties,
and ‘‘the evidence presented, which included evidence of the [husband’s]
actual net bonus income, including a payroll statement . . . reflecting his
most recent annual net bonus payment’’), Langley v. Langley, supra, 137
Conn. App. 602–604 (upholding financial orders when trial court did not
state that it relied on gross income or ‘‘that it drafted its financial orders
based on the [husband’s] gross earning capacity,’’ but because it ‘‘had before
it evidence of the [husband’s] gross and net income and referred to both
in its memorandum of decision,’’ in particular the financial affidavit, and
relied on earning capacity, shown by documentation of husband’s business
profits and losses, including gross and net income, and his tax returns),
Hughes v. Hughes, 95 Conn. App. 200, 206–207, 895 A.2d 274 (trial court
cited, but did not improperly rely on, husband’s gross earnings because it
noted that they ‘‘demonstrate[d] their scope and variability in order to
explain its reasoning for fashioning an order framed as a percentage of the
[husband’s] gross earnings,’’ when remainder of decision considered ‘‘gross
and net values of the [husband’s] most recent cash bonus,’’ financial affida-
vits, and tax returns that disclosed his ‘‘net disposable income’’), cert. denied,
280 Conn. 902, 907 A.2d 90 (2006), and Kelman v. Kelman, 86 Conn. App.
120, 122–24, 860 A.2d 292 (2004) (reversal was not required because trial
court ‘‘never stated . . . that it was relying solely on . . . gross incomes’’
and its ‘‘memorandum of decision specifically stated that it was relying on
‘all of the relevant information,’ including the parties’ financial affidavits
and their child support guideline worksheets, both of which included the
parties’ net incomes’’), cert. denied, 273 Conn. 911, 870 A.2d 1079 (2005).