Ostapowicz v. Wisniewski ( 2022 )

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HALINA OSTAPOWICZ v. JERZY WISNIEWSKI
(AC 43944)
Alexander, Clark and Sheldon, Js.
Syllabus
The plaintiff appealed from the judgment of the trial court dissolving her
marriage to the defendant. She claimed that the court lacked subject
matter jurisdiction to enforce the parties’ premarital agreement, erred
in finding that certain property constituted the defendant’s separate
property under that agreement and abused its discretion in assigning
to her the debt on the parties’ home equity line of credit. Held:
1. The plaintiff could not prevail on her claim that the trial court lacked
subject matter jurisdiction to enforce the parties’ premarital agreement:
although the defendant did not comply with the specific pleading require-
ments of the rule of practice (§ 25-2A), as he did not file a demand for
enforcement of the agreement in his prayer for relief, the court, noting
that § 25-2A permits the court to exercise its discretion with respect
to the time to demand enforcement of an agreement, found that the
defendant’s filing of a notice containing the agreement constituted a
demand for the enforcement of the agreement; moreover, the court
had statutory (§ 46b-1) jurisdiction over the dissolution of the parties’
marriage, including the premarital agreement, and the rules of practice
do not implicate a court’s subject matter jurisdiction.
2. The trial court did not abuse its discretion in classifying and assigning
the defendant’s separate property interests pursuant to the parties’ pre-
marital agreement: the plaintiff did not challenge the court’s findings
that the defendant had complied with the provisions of the agreement
related to record keeping and that the plaintiff had removed certain of
the defendant’s financial records from the marital home, making it diffi-
cult for the defendant to trace his property interests in detail; moreover,
the court credited the testimony of witnesses that the defendant’s family
business was an informal venture, and it made detailed findings concern-
ing the value of the family business assets at the time of the parties’
marriage and at trial; furthermore, the court did not assign to either
party the other party’s interest in the family business, thus, the court
did not err in not placing a total value on the defendant’s interest in
the family business pursuant to statute (§ 46b-81 (c)).
3. The trial court abused its discretion in assigning to the plaintiff the entire
outstanding debt on the parties’ home equity line of credit; the court
found that the defendant borrowed $10,000 under this line of credit to
pay his attorney’s fees in the dissolution proceeding, thus, its order
assigning the plaintiff to pay the entire outstanding debt was irreconcil-
able with its order that the parties were solely responsible for the
payment of their respective attorney’s fees.
Argued October 7, 2021—officially released February 1, 2022
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Britain and tried to the court, Caron, J.;
judgment dissolving the marriage and granting certain
other relief in accordance with the parties’ premarital
agreement, from which the plaintiff appealed to this
court. Affirmed in part; reversed in part; further pro-
ceedings.
Keith Yagaloff, for the appellant (plaintiff).
Kevin B. F. Emerson, for the appellee (defendant).
Opinion
CLARK, J. The plaintiff, Halina Ostapowicz, appeals
from the judgment of the trial court dissolving her mar-
riage to the defendant, Jerzy Wisniewski. On appeal,
the plaintiff claims that the court (1) lacked subject
matter jurisdiction to enforce the parties’ premarital
agreement, (2) erroneously found that certain property
constituted the defendant’s separate property under the
premarital agreement and failed to assign a specific
value to that property, and (3) abused its discretion in
assigning to her the debt on the parties’ home equity
line of credit. We agree with the plaintiff’s third claim
and, therefore, affirm in part and reverse in part the
judgment of the trial court.
The following facts, as found by the court, and proce-
dural history are relevant to our resolution of the plain-
tiff’s appeal. The parties were married on August 21,
2006. Prior to their wedding, they both signed a premari-
tal agreement (agreement). The plaintiff commenced
the present action for dissolution of the marriage on
October 20, 2017, alleging that the marriage had broken
down irretrievably. On May 14, 2018, the defendant
simultaneously filed an answer in which he alleged that
the marriage should be annulled on the basis of fraud,
a cross complaint,1 and a ‘‘notice’’ to which he attached
the agreement. The court tried the case on several days
between April 16 and July 19, 2019. The parties and
the defendant’s daughter, Alice Vautour, and his sister,
Barbara Szczypinski, testified at trial.
Following the presentation of evidence and submis-
sion of posttrial briefs, the court issued a lengthy and
comprehensive memorandum of decision on December
30, 2019. The court found that the plaintiff was fifty-
two years old, in good health, and the mother of two
adult children. She was born in Poland and came to
the United States in 2004 on a tourist visa, but later
secured a student visa and attended Central Connecti-
cut State University. When she arrived in the United
States, she worked as a private duty nurse. At the time
of trial, she was working as a certified nurse’s aide
at the University of Connecticut Health Center. The
plaintiff attained permanent resident status when she
married the defendant; she became a United States citi-
zen in 2014.
The defendant was seventy years old and in poor
health. He, too, had been born in Poland and came to
the United States with his parents when he was fourteen
years old. He earned a bachelor’s degree in mechanical
engineering in 1974. He and his brother owned a
machine shop that they sold in 1987. He later was
employed by two other businesses. In 2013 and 2014,
the defendant had quadruple bypass surgery and two
venous thrombectomies. He has difficulty walking and
takes a dozen medications daily for his multiple health
problems.
The court also found that, beginning fifty years ago
with his parents, continuing with his brother and sister,
and now with his children, the defendant and his family
have pooled their money, resources, and labor to buy,
maintain, and sell investment real estate. At one time,
the family owned and maintained twelve investment
properties. To further their business, the family has
held various bank and investment accounts, each in the
name of more than one member of the family. The court
found that the family business is an informal venture,
and through the generations, there have never been
any contracts or written agreements between family
members. Names were added to and removed from
titles on properties as needed to further the growth of
the business. Family members pool their money, putting
in and taking out what is necessary, and working
together to purchase, renovate, maintain, and sell prop-
erties. The court made detailed findings with respect
to the family’s business assets, both real property and
monetary, and related transactions.
The court did not find it surprising that there were
no contracts or written agreements between and among
members of the defendant’s family, stating: ‘‘The first
generation of immigrants from Poland worked hard and
invested well and passed down to their children assets
they had accumulated as a family. The next generation,
immigrants themselves, continued in the same vein,
following the example of their parents, investing money,
time and labor as a family. The court does not ascribe
any nefarious motives to the informal way the family
has conducted its business, nor does it question the
fact that there are no written agreements or contracts.’’
With respect to the parties’ relationship, the court
found that they had lived together for eleven months
in the defendant’s Fenwick Street apartment in Hartford
before they married. The defendant helped the plaintiff
obtain a student visa and eventually permanent resi-
dency. He also helped the plaintiff’s daughter and son-
in-law attain legal status. The court found that the par-
ties had approximately nine years of a good marriage.
In November, 2015, the defendant asked the plaintiff,
for probate purposes, to sign an addendum to the agree-
ment so that there would be contemporaneous docu-
mentation that the plaintiff would not make any claim
against any of the properties or accounts the defendant
acquired through his family business prior to or since
the date of marriage. The court found the timing of the
defendant’s request significant, as it occurred shortly
after he experienced serious health issues. The plaintiff
refused to sign the addendum. Multiple events between
2015 and 2017 put a strain on the parties’ relationship,
including the defendant’s health issues and the death
of the plaintiff’s mother in Poland. The court found
that disagreements and arguments over money and real
estate ultimately led the plaintiff to file for divorce.
The court determined that neither party was primarily
responsible for the end of the relationship. The court
also concluded that the defendant had failed to prove by
clear and convincing evidence that the plaintiff married
him solely to attain legal status for herself and her
family. The court thus found no fraud on the part of
the plaintiff and that the parties’ marriage was valid.
With respect to the agreement, the court found that,
when the defendant asked the plaintiff to sign the agree-
ment, he made clear that his intention was to protect
his interest in the family’s business. He testified that
he would not have married the plaintiff if she had not
signed the agreement. At the time the agreement was
drafted, the defendant showed the plaintiff bank and
account statements regarding the family business.2 Dur-
ing the marriage, the statements were mailed to the
marital home and, according to the defendant, the plain-
tiff had full access to and knowledge of the contents
of the statements. The plaintiff also accompanied the
defendant to the bank on several occasions.
The plaintiff testified that the defendant probably
told her that he would not marry her if she did not sign
the agreement. According to her, the defendant went
through his financial affidavit and told her that most
of the money was family money and the Fenwick Street
apartment house where they were living was a family
house. She acknowledged that the defendant and his
family worked hard for their money and kept it together
but claimed that the defendant never told her how much
of the family money was his.
The defendant helped the plaintiff prepare her finan-
cial affidavit and explained the agreement to her in
Polish. The plaintiff later met with Jacek I. Smigelski,
a Polish-speaking attorney, to review the agreement;
the defendant, who had separate counsel, was not pres-
ent at the meeting. The plaintiff asked Smigelski a few
questions about the agreement, which he answered.
The defendant signed the agreement on July 5, 2006;
the plaintiff signed it on July 7, 2006. The parties were
married on August 21, 2006.
The court noted that General Statutes § 46b-36a et
seq. governs premarital agreements. Under that act, a
premarital contract is not enforceable under the follow-
ing conditions: it was not signed voluntarily; it is uncon-
scionable; a party was not provided fair and reasonable
disclosure of the amount, character and value of prop-
erty, financial obligations and income of the other party;
or a party was not provided a reasonable opportunity
to consult with independent counsel before signing it.
General Statutes § 46b-36g.
The plaintiff acknowledged that both parties signed
the agreement, and she did not claim that it is uncon-
scionable. Instead, she claimed that the defendant did
not tell her that the bank accounts he disclosed were
co-owned by family members and that she did not have
a meaningful opportunity to review the agreement with
counsel.
The court rejected both claims. It noted that, although
they were not required by statute to do so, the parties
appended financial affidavits to the agreement. The
defendant reviewed his financial affidavit with the plain-
tiff prior to the time she signed the agreement and
explained to her that much of the money listed in that
financial affidavit belonged to his family and that they
had always held those assets together. The plaintiff also
testified that, at the time she signed the agreement, she
understood that she was giving up any future claim for
family money in the event of a dissolution. ‘‘Given that
background and crediting the defendant’s testimony
that, at the time of the drafting and prior to the signing
of the agreement, he showed the plaintiff all of the bank
and account statements regarding his family money and
business (which bank accounts contained other family
members’ names as well as the defendant’s),’’ the court
found that the defendant provided the plaintiff with a
fair and reasonable disclosure of the amount, character
and value of his property.
The court also found that the plaintiff had an opportu-
nity to meet with a Polish speaking attorney to review
the agreement approximately one and one-half months
before the wedding, which the court considered a rea-
sonable period of time for review. It was the plaintiff’s
responsibility to ensure that the legal consultation was
meaningful to her. The court, therefore, concluded that
the agreement was valid and enforceable.
The court then turned to the substance of the agree-
ment. The court noted that, under section A of para-
graph IX of agreement, titled ‘‘Termination of Marriage,’’
‘‘[n]either party [is entitled to] receive any portion of
the separate property of the other . . . and/or replace-
ments of such property.’’ Section B of paragraph IX
further provides that the ‘‘parties shall have no right
against each other by way of claims for . . . division
of property existing of this date . . . or acquire[d] in
the future separately from separate [funds].’’3 (Empha-
sis altered.) As a result, the court construed the agree-
ment to mean that ‘‘neither party shall have a claim
against the separate property (the real estate in sched-
ules C and D [of the agreement]) or a claim against the
property existing as of the date of the [a]greement/
subsequent marriage (all the assets in schedules A and
B), or of any future real estate or investments that
flow from these original assets.’’ (Emphasis added.)
On the basis of the court’s construction of the agree-
ment and its finding that ‘‘family business assets listed
on the defendant’s current financial affidavit [were] a
direct result of the premarital assets he was in posses-
sion of at the time of the marriage, as they were acquired
after the marriage, separately from separate funds,’’ the
court concluded that the plaintiff had no right or claim
to the defendant’s interest in the family business assets
he had listed in his current financial affidavit.
With respect to the marital home, however, the court
found that the parties had commingled funds to pur-
chase the home and that the plaintiff had helped to
maintain it and assisted with improvements. She also
had paid the debt on the home equity line of credit.
The court concluded, therefore, that the marital home
was marital property in which the plaintiff had a legiti-
mate, legal interest.
In dissolving the marriage on the grounds of an irre-
trievable breakdown, the court ordered, among other
things, that the parties are responsible for their respec-
tive health insurance and unreimbursed medical
expenses; neither party shall receive alimony; the defen-
dant shall quitclaim the marital home to the plaintiff,
who ‘‘shall be solely responsible for payment of the
[home equity line of credit],’’ taxes, insurance, and
maintenance; the plaintiff has no interest in the defen-
dant’s family business; the parties shall retain their
respective bank and retirement accounts and pay their
respective debts; the defendant shall retain his rights
in the family business; the parties shall retain their
respective automobiles; and ‘‘[e]ach party shall be
solely responsible for payment of their respective attor-
ney’s fees incurred during the course of this case.’’
(Emphasis added.)
The plaintiff filed a motion to reargue on the grounds
that the court had erred in classifying and assigning the
property it determined was the defendant’s separate
property and in ordering the parties to be responsible
for their own attorney’s fees while also assigning the
debt on the home equity line of credit to her. The defen-
dant objected to the motion to reargue, arguing, among
other things, that assigning the home equity loan to the
plaintiff was not an order that the plaintiff pay the
defendant’s attorney’s fees, but the ‘‘[c]ourt’s calcula-
tion as to the appropriate award to the defendant (value
of property less balance of the [line of credit]).’’ The
court summarily denied the motion to reargue, and the
plaintiff did not move for an articulation. This appeal
followed.
I
The plaintiff first claims that the court lacked subject
matter jurisdiction to enforce the agreement because
the defendant did not comply with the requirements of
Practice Book § 25-2A.4 We disagree.
We begin with the standard of review. ‘‘Subject matter
jurisdiction involves the authority of the court to adjudi-
cate the type of controversy presented by the action
before it.’’ (Internal quotation marks omitted.) Aley v.
Aley, 97 Conn. App. 850, 854, 908 A.2d 8 (2006). Subject
matter jurisdiction ‘‘may be raised by a party, or by
the court sua sponte, at any stage of the proceedings,
including on appeal.’’ (Internal quotation marks omit-
ted.) Id. A determination of a court’s subject matter
jurisdiction is a question of law, and, therefore, our
review is plenary. See, e.g., Giulietti v. Giulietti, 65
Conn. App. 813, 846, 784 A.2d 905, cert. denied, 258
Conn. 946, 788 A.2d 95 (2001), and cert. denied, 258
Conn. 947, 788 A.2d 95 (2001), and cert. denied sub
nom. Vernon Village, Inc. v. Giulietti, 258 Conn. 947,
788 A.2d 97 (2001), and cert. denied sub nom. Giulietti
v. Vernon Village, Inc., 258 Conn. 947, 788 A.2d 96(2001).
The following procedural facts are relevant to our
resolution of this claim. The plaintiff commenced the
present action in October, 2017. The complaint con-
tained no allegation regarding the agreement. On May
14, 2018,5 the defendant simultaneously filed three
pleadings: an answer, a cross complaint, and a ‘‘notice’’
to which he attached a copy of the parties’ agreement,
including schedules. The defendant did not expressly
reference or demand enforcement of the agreement in
his prayer for relief.
On October 18, 2018, approximately six months after
the defendant had filed with the court the notice and
agreement and just twelve days before trial was sched-
uled to commence, the plaintiff filed a motion to pre-
clude the agreement on the grounds that the defendant
had failed to comply with Practice Book § 25-2A, which
provides that a party seeking to enforce a premarital
agreement ‘‘shall specifically demand the enforcement
of that agreement, including its date, within the party’s
claim for relief’’ within sixty days of the return date
‘‘unless otherwise permitted by the court.’’ The plaintiff
argued that the defendant did not include a demand for
enforcement of the agreement within his claim for
relief, did not file the agreement itself within sixty days
of the November 21, 2017 return date, and did not seek
permission from the court to file any such claim for
relief after the deadline for doing so had passed. As a
result, she argued that the agreement was not properly
before the court and could not be enforced, citing War-
ren v. Gardel, Superior Court, judicial district of Fair-
field, Docket No. FA-XX-XXXXXXX-S (November 28, 2016),
and Olderman v. Olderman, Superior Court, judicial
district of New Britain, Docket No. FA-XX-XXXXXXX-S
(August 13, 2014).6
On the following day, October 19, 2018, the court
heard and denied the plaintiff’s motion to preclude the
agreement. In its order, the court acknowledged that
the rules of practice required the defendant to file with
his answer and cross complaint a demand for enforce-
ment of the agreement on or before January 21, 2018.
The court noted, however, that Practice Book § 25-2A
(a) permits ‘‘the court to exercise its discretion’’ with
respect to the time to demand enforcement of an agree-
ment. The court also found that the defendant’s filing
of the ‘‘notice’’ and agreement ‘‘constitute[d] a demand
for the enforcement of [the] agreement.’’ The court fur-
ther found that the plaintiff did not file a timely reply
pursuant to Practice Book § 25-2A (b) but, instead,
waited until the eve of trial to file her motion to preclude
the agreement. As a result, the court denied the motion
to preclude but continued the trial in order to provide
the parties with more time to conduct discovery regard-
ing the agreement.7
On appeal, the plaintiff claims that the court lacked
subject matter jurisdiction to enforce the agreement
because the defendant did not comply with the specific
pleading requirements of Practice Book § 25-2A. As a
result, she argues that any orders flowing from the
agreement are void. We disagree.
Pursuant to General Statutes § 46b-1, the Superior
Court has broad jurisdiction over family matters involv-
ing dissolution of marriage, including prenuptial agree-
ments.8 ‘‘Jurisdiction of the [subject matter] is the
power [of the court] to hear and determine cases of
the general class to which the proceedings in question
belong. . . . A court has subject matter jurisdiction if
it has the authority to adjudicate a particular type of
legal controversy. . . . It is a familiar principle that a
court which exercises a limited and statutory jurisdic-
tion is without jurisdiction to act unless it does so under
the precise circumstances and in the manner particu-
larly prescribed by the enabling legislation.’’ (Internal
quotation marks omitted.) Muller v. Muller, 43 Conn.
App. 327, 331, 682 A.2d 1089 (1996). Under § 46b-1, there
is no question that the court had jurisdiction over the
dissolution of the parties’ marriage, including whether
the agreement should be enforced. See Amodio v. Amodio,
247 Conn. 724, 729, 724 A.2d 1084 (1999) (Superior Court
as general jurisdiction tribunal has plenary and general
subject matter jurisdiction over legal disputes in family
matters). Moreover, it is well settled that the rules of
practice, including those pertaining to pleading require-
ments, do not implicate a court’s subject matter jurisdic-
tion. See General Statutes § 51-14 (a) (‘‘[s]uch rules
shall not abridge, enlarge or modify any substantive
right or the jurisdiction of any of the courts’’).
Accordingly, the plaintiff’s claim that the court lacked
subject matter jurisdiction to enforce the agreement
fails.9
II
The plaintiff’s second claim is that there was insuffi-
cient evidence for the court to find that, at the time
of the dissolution, certain properties constituted the
defendant’s ‘‘separate property’’ under the agreement.
See footnote 3 of this opinion. The plaintiff argues that
the defendant failed to provide sufficient evidence for
the court to trace the properties he owned at the time
of trial to the separate properties he owned at the time
the parties signed the agreement and were married. She
also claims that the court erred by failing to assign a
specific value to the defendant’s ownership interest in
the family business. We disagree.
We begin with the applicable standard of review. ‘‘[I]n
domestic relations cases . . . this court will not dis-
turb trial court orders unless the trial court has abused
its legal discretion or its findings have no reasonable
basis in the facts. . . . As has often been explained,
the foundation for this standard is that the trial court is
in a clearly advantageous position to assess the personal
factors significant to a domestic relations case . . . .
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. . . . Notwithstanding the
great deference accorded the trial court in dissolution
proceedings, a trial court’s ruling . . . may be reversed
if, in the exercise of its discretion, the trial court applies
the wrong standard of law.’’ (Citations omitted; internal
quotation marks omitted.) Maturo v. Maturo, 296 Conn.
80, 87–88, 995 A.2d 1 (2010). ‘‘When a trial court has
evidence in a dissolution action sufficient for its deci-
sion, garnered from the testimony, exhibits and finan-
cial affidavits, its rulings will not be disturbed even
though the memorandum of decision is silent as to that
evidence.’’ Russo v. Russo, 1 Conn. App. 604, 606–607,
474 A.2d 473 (1984).
In its memorandum of decision, the court quoted in
relevant part the following provision of the agreement:
‘‘Neither party shall receive any portion of the separate
property of the other . . . and/or replacements of such
property. . . . The parties shall have no right against
each other by way of . . . division of property
existing [as] of this date . . . or acquire[d] in the
future separately from separate [funds].’’ (Emphasis
added.) The court found that the ‘‘family business assets
listed on the defendant’s current financial affidavit
[were] a direct result of the premarital assets he was
in possession of at the time of the marriage, as they were
acquired after the marriage, separately from separate
funds.’’ As a result, the court concluded that, under the
agreement, the plaintiff had no right or interest in any
of those family business assets.
At trial, the defendant introduced evidence of the
premarital family business assets that he owned on the
date the parties married, including the agreement with
the attached schedules setting forth each parties’ assets
at the time of the marriage and the value thereof. The
defendant’s daughter and sister also testified about the
family business and how it operated during the parties’
marriage, including the family’s acquisition of numer-
ous investment properties during that time frame.
The plaintiff argues that the court was required to
trace more precisely the defendant’s current assets
back to the separate property he owned at the time the
parties married. She points to paragraph C of section
III of the agreement, titled ‘‘Separate Property,’’ which
provides that the ‘‘parties shall keep adequate records
of their transactions in such separate property and shall
make such records available to the other from time to
time, the intent being that at all times the separate
property will be effectively updated by each of them
in such financial records.’’ She also argues that the
agreement, in effect, required the court to sit as a ‘‘com-
munity property state’’ and not as an ‘‘equitable distribu-
tion state’’ and that courts in community property juris-
dictions have held that a party seeking to claim assets
as separate property ‘‘bears a heightened burden of
proof to trace any allegedly converted assets to premari-
tal assets.’’
In making this claim, however, the plaintiff ignores
the court’s findings that (1) the defendant complied
with the agreement’s record keeping provision during
the course of the marriage and (2) upon commencing
these divorce proceedings and without the defendant’s
consent, the plaintiff removed from the marital home
several boxes of documents containing the defendant’s
financial records and information on the defendant’s
computer. According to the court, the plaintiff’s failure
to produce this information during discovery made it
‘‘difficult and at times impossible for the defendant to
trace in detail and with specificity all of the family
business accounts and premarital assets transactions
from the date of the marriage to the present.’’ The plain-
tiff has not challenged these findings on appeal.
As noted earlier in this opinion, the court heard and
credited the testimony of witnesses who described the
family business as an informal venture. Family mem-
bers pooled their money, working together to purchase,
renovate, maintain, and sell properties. The court did
not find it surprising that there were no contracts or
written agreements between and among members of
the defendant’s family and did not ascribe any nefarious
motives to the informal way the family conducted its
business. The court made detailed findings concerning
the value of the family business assets at the time of
the parties’ marriage and at trial. It also found that
five separate properties in which the defendant had an
interest were acquired by the family business during
the course of the marriage. With the exception of one
such property,10 the court found that the plaintiff did
not contribute any funds toward the purchase of those
properties or contribute money or labor toward the
renovation, maintenance or upkeep of the properties.
The court stated that its findings were based on the
evidence and testimony presented at trial and on its
observations and assessments of the credibility of the
witnesses. ‘‘[I]t is within the province of the trial court,
when sitting as the fact finder, to weigh the evidence
presented and determine the credibility and effect to
be given the evidence.’’ (Internal quotation marks omit-
ted.) Zilkha v. Zilkha, 167 Conn. App. 480, 487–88, 144
A.3d 447 (2016).
On the basis of our review of the entire record, we
conclude that, under the circumstances of this case,
there was sufficient evidence to support the trial court’s
findings with respect to the defendant’s separate prop-
erty. We reach that conclusion in part because the court
determined that the plaintiff’s removal and failure to
produce the defendant’s financial records prevented
him from performing the kind of detailed tracing the
plaintiff claims was required. See Certo v. Fink, 140
Conn. App. 740, 743, 749–50, 60 A.3d 372 (2013) (court
did not commit error in relying on plaintiffs’ estimate
of damages when court credited plaintiffs, discredited
defendant, and found that plaintiffs had to rely on esti-
mate of damages as result of defendant’s failure to
provide discovery).
We also reject the plaintiff’s claim that the court
improperly failed to place a total value on the defen-
dant’s interest in the family business, in violation of
General Statutes § 46b-81 (c). That statute concerns the
court’s authority to assign to either spouse all or part
of the estate of the other spouse. In this case, the court
determined that the defendant’s interest in the family
business constituted his separate property under the
agreement and, in accordance with the agreement,
ordered that, upon dissolution, the defendant shall
retain his interest in that separate property. Thus, § 46b-
81 (c) had no applicability because the court did not
assign to either party the other party’s interest in the
family business. Accordingly, the plaintiff’s claim that
the court improperly classified and assigned the defen-
dant’s separate property interest in the family busi-
ness fails.
III
The plaintiff’s third and final claim is that the court
abused its discretion in assigning to her the entire out-
standing debt on the parties’ home equity line of credit.
We agree because that order conflicts with the court’s
order regarding attorney’s fees.
‘‘The construction of a judgment is a question of law
for the court. . . . As a general rule, judgments are
to be construed in the same fashion as other written
instruments. . . . The determinative factor is the inten-
tion of the court as gathered from all parts of the judg-
ment. . . . The interpretation of a judgment may
involve the circumstances surrounding the making of
the judgment. . . . Effect must be given to that which
is clearly implied as well as to that which is expressed.
. . . The judgment should admit of a consistent con-
struction as a whole.’’ (Citations omitted; internal quota-
tion marks omitted.) Lashgari v. Lashgari, 197 Conn.
189, 196–97, 496 A.2d 491 (1985).
‘‘Our standard of review for financial orders in a
dissolution action is clear. The trial court has broad
discretion in fashioning its financial orders, and [j]udi-
cial review of a trial court’s exercise of [this] broad
discretion . . . is limited to the question of whether
the . . . court correctly applied the law and could rea-
sonably have concluded as it did.’’ (Internal quotation
marks omitted.) Hammel v. Hammel, 158 Conn. App.
827, 835–36, 120 A.3d 1259 (2015). ‘‘This deferential
standard of review is not, however, without limits.
There are rare cases in which the trial court’s financial
orders warrant reversal because they are, for example,
logically inconsistent . . . or simply mistaken . . . .’’
(Internal quotation marks omitted.) Id., 836.
The following additional facts are relevant to this
claim. In December, 2015, the parties obtained a home
equity line of credit and used some of the funds to pay
off the plaintiff’s personal line of credit, totaling $24,271.
The parties also drew on the line of credit for their
respective attorney’s fees in this dissolution matter. The
court specifically found that the defendant borrowed
$10,000 under this line of credit to pay his own attor-
ney’s fees in this matter but also ordered, among other
things, that the ‘‘plaintiff shall be solely responsible for
payment of the [home equity line of credit],’’11 and that
‘‘[e]ach party shall be solely responsible for payment
of their respective attorney’s fees incurred during the
course of this case.’’
On appeal, the plaintiff argues that the court’s order
regarding the home equity line of credit conflicts with
its order that the parties are responsible for the payment
of their respective attorney’s fees. We agree that the
two orders are irreconcilable. We, therefore, reverse
the judgment only with regard to the order that the
plaintiff is solely responsible for the debt on the home
equity line of credit and remand the case with direction
to resolve the inconsistency.12
The judgment is reversed only as to the order regard-
ing the home equity line of credit and the case is
remanded for further proceedings consistent with this
opinion; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The cross complaint alleged that the marriage should be annulled on
the grounds of fraud and misrepresentation because the plaintiff allegedly
entered the marriage with the sole intent of using the defendant’s citizenship
to gain permanent residency and citizenship for herself, her children and
her son-in-law.
2
Four schedules, which listed the parties’ respective assets and liabilities,
were attached to the agreement.
3
Section III of the agreement, titled ‘‘SEPARATE PROPERTY,’’ provides
as follows: ‘‘Each of the parties agrees that the property described hereafter,
shall be defined as the separate [property] of the other party.
‘‘A. All property of [the defendant] listed on ‘Schedule C’ attached hereto
and all property listed of [the plaintiff] listed on ‘Schedule D’ attached hereto.
‘‘B. All property, whether real or personal or whatsoever nature and
wheresoever situated acquired by either party out of the proceeds or income
from the separate property or any replacements thereof, or attributable to
appreciation in value of said property, or their replacements, whether the
enhancement is due to market conditions or to the services, skills or efforts
of either of the parties.
‘‘C. The parties shall keep adequate records of their transactions in such
separate property and shall make such records available to the other from
time to time, the intent being that at all times the separate property will be
effectively updated by each of them in such financial records.’’
Schedules A and B are the parties’ respective financial affidavits that were
appended to the agreement. Schedules C and D document the title holders
of the real estate that was listed in the parties’ respective financial affidavits.
4
Practice Book § 25-2A provides in relevant part: ‘‘(a) If a party seeks
enforcement of a premarital agreement . . . he or she shall specifically
demand the enforcement of that agreement, including its date, within the
party’s claim for relief. The defendant shall file said claim for relief within
sixty days of the return date unless otherwise permitted by the court.
‘‘(b) If a party seeks to avoid the premarital agreement . . . he or she
shall, within sixty days of the claim seeking enforcement of the agreement,
unless otherwise permitted by the court, file a reply specifically demanding
avoidance of the agreement and stating the grounds thereof.’’
5
In its order denying the plaintiff’s motion to preclude the agreement,
the court cites different dates on which the answer, cross complaint, and
notice were filed. Those dates appear to be the dates the documents were
signed or captioned, however. According to the docket prepared by the
clerk, all three documents were filed on May 14, 2018.
6
In Warren, the court noted that Practice Book § 25-2A ‘‘requires that a
party seeking to enforce a pre- or post-nuptial agreement plead the agree-
ment in the prayer for relief.’’ Warren v. Gardel, supra, Superior Court,
Docket No. FA-XX-XXXXXXX-S. Because neither party had done so, the court
concluded that it did ‘‘not have the authority to issue orders enforcing the
terms of the pre-nuptial agreement itself.’’ Id. Similarly, in Olderman, neither
party had pleaded or demanded enforcement of the premarital agreement
in accordance with Practice Book § 25-2A. The court concluded, without
discussion or analysis, that, ‘‘[c]onsequently, a claim for enforcement of
the premarital agreement is not properly before this court.’’ Olderman v.
Olderman, supra, Superior Court, Docket No. FA-XX-XXXXXXX-S. Neither court
suggested that a party’s failure to comply with Practice Book § 25-2A
deprived the court of subject matter jurisdiction over the agreement, which
is the plaintiff’s claim in the present appeal.
7
The trial was rescheduled for April 16, 2019.
8
General Statutes § 46b-1 provides in relevant part: ‘‘Matters within the
jurisdiction of the Superior Court deemed to be family relations matters
shall be matters affecting or involving: (1) Dissolution of marriage, contested
and uncontested . . . (15) actions related to prenuptial . . . agreements
. . . .’’
9
The plaintiff’s claim on appeal is that the defendant’s failure to comply
with the pleading requirements of Practice Book § 25-2A deprived the court
of subject matter jurisdiction to enforce the agreement. The only hint of
an alternative, nonjurisdictional claim challenging the court’s authority to
enforce the agreement appears in the following sentence of her reply brief:
‘‘Since [the] [d]efendant never pleaded the agreement, the trial court was
without [subject matter] jurisdiction to hear it, or, in the alternative, could
not enforce it.’’ (Emphasis added.) Because the plaintiff did not make such
a claim in her principal brief, we need not decide the separate question of
whether the pleading requirements of § 25-2A are mandatory, as opposed
to directory, and whether the defendant’s alleged failure to comply strictly
with those provisions deprived the court of the authority, as opposed to
the jurisdiction, to enforce the premarital agreement. See, e.g., Calcano v.
Calcano, 257 Conn. 230, 244, 777 A.2d 633 (2001) (arguments cannot be
raised for first time in reply brief).
10
With respect to the Fenwick Street property in Hartford, the court found
that the plaintiff paid utilities and contributed toward the rent from the time
the building was sold out of the family’s business in 2014 until the parties
moved to the marital home in December, 2015.
11
The court also ordered that no further funds were to be drawn on the
home equity line of credit.
12
During oral argument before this court, counsel for the parties agreed
that the order regarding payment of the home equity line of credit was
severable from the mosaic of the court’s financial orders. We agree. See
Tuckman v. Tuckman, 308 Conn. 194, 214, 61 A.3d 449 (2013) (financial
order severable when not interdependent with other orders).