Seder v. Errato ( 2022 )

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LAUREN T. SEDER v. ROBERT M. ERRATO
(AC 43379)
Cradle, Alexander and Eveleigh, Js.
Syllabus
The defendant appealed from the judgment of the trial court dissolving
his marriage to the plaintiff. During the dissolution proceedings, the
defendant claimed that the parties had entered into a prenuptial agree-
ment but that the agreement was missing. The court held an evidentiary
hearing to permit the defendant to attempt to prove the existence and
terms of that agreement by offering collateral evidence as to its contents.
The defendant attempted to introduce as a proposed exhibit a boilerplate
prenuptial agreement that had been downloaded from an online pub-
lisher of legal documents in order to prove the content of the parties’
alleged agreement. The document had several areas that were not popu-
lated and there were no financial disclosures attached. The plaintiff
testified that she had signed a prenuptial agreement but that the defen-
dant had not signed it, and she had no clear recollection as to what the
terms might have been or what the defendant’s financial disclosures
may have included. The court found that, although there was a premarital
agreement that was signed prior to the date of the marriage, there was
a lack of evidence as to the terms of the agreement, and concluded that
the proposed exhibit would not be allowed into evidence. Following a
trial, the court ordered the defendant to contribute to the plaintiff’s
legal fees and costs. On the defendant’s appeal to this court, held:
1. The trial court did not err in failing to enforce the alleged prenuptial
agreement, the evidence having amply supported the court’s finding
that the defendant did not sufficiently establish the contents of the
agreement: although the defendant presented some evidence to prove
the contents of the alleged missing agreement, including the proposed
exhibit, the court found that no specific date of the agreement had been
proven and there was a conflict with the nature and depth of the financial
disclosures; moreover, contrary to the defendant’s claim, the court did
not impermissibly favor the plaintiff’s lack of memory of the terms of the
alleged agreement or completely overlook the evidence the defendant
proffered, the defendant having failed to appreciate that it was within
the province of the court, when sitting as the fact finder, to weigh the
evidence presented and determine its credibility and effect, and the
court found the plaintiff’s testimony generally credible throughout the
trial and significant portions of the defendant’s testimony to be not
credible; accordingly, this court, deferring to the trial court’s assess-
ments concerning credibility, determined that the trial court did not
abuse its discretion in excluding the defendant’s proposed exhibit.
2. There was no merit to the defendant’s claim that the trial court erred in
awarding attorney’s fees to the plaintiff: the court methodically analyzed
the plaintiff’s purported justifications for entitlement to attorney’s fees
and determined that an award of attorney’s fees was warranted pursuant
to the applicable statute (§ 46b-62 (a)) for payment of attorney’s fees
in dissolution proceedings; moreover, there was no support in the record
for the defendant’s claim that the court abused its discretion in awarding
attorney’s fees in the amount of $280,000.
Argued January 5—officially released March 15, 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 Hartford where the defendant filed a counter-
claim; thereafter, the matter was tried to the court,
Hon. Gerard I. Adelman, judge trial referee; judgment
dissolving the marriage and granting certain other relief,
from which the defendant appealed to this court; subse-
quently, the court, Hon. Gerard I. Adelman, judge trial
referee, granted the plaintiff’s motion for attorney’s
fees, and the defendant filed an amended appeal.
Affirmed.
Daniel J. Krisch, for the appellant (defendant).
Michael S. Taylor, with whom were Brendon P. Lev-
esque, and, on the brief, Scott T. Garosshen, for the
appellee (plaintiff).
Opinion
EVELEIGH, J. In this dissolution of marriage action,
the defendant, Robert M. Errato, appeals from the judg-
ment of the trial court dissolving his marriage to the
plaintiff, Lauren T. Seder, and challenges the trial
court’s financial orders and award of attorney’s fees.
On appeal, the defendant claims that the court improp-
erly (1) refused to enforce the parties’ prenuptial agree-
ment and (2) ordered the defendant to pay $280,000 in
attorney’s fees. We affirm the judgment of the trial
court.
The following facts and procedural history are rele-
vant to this appeal. The parties first met in October,
1998, at the Oakdale Theater in Wallingford, which was
operated by the defendant. On October 10, 2003, the
parties were married in Fort Meyers, Florida. This was
each party’s third marriage. Their marriage was good for
the first few years, but a breakdown of the relationship
began around 2007 or 2008. By the spring of 2014, the
plaintiff came to believe that the marriage was beyond
saving. The parties discussed and negotiated their sepa-
ration in 2014, but that process was not successful.
Collaboration eventually gave way to litigation.
The present dissolution action was filed by the plain-
tiff on May 12, 2015. The parties continued to discuss
amicable terms to resolve the divorce and took no
action to further their respective cases until the fall of
2015. On October 2, 2015, the plaintiff filed a motion
for alimony pendente lite, which was later granted by
the court. The dissolution trial was then held over nine-
teen days between May 1, 2017, and June 26, 2019. There
was also a multiday hearing on the defendant’s motion
to modify alimony pendente lite in the middle of trial,
which resulted in testimony and other legal proceedings
covering a total of twenty-three days.
In a memorandum of decision dated August 29, 2019,
the court dissolved the parties’ marriage and ordered
the defendant, among other things, to pay the plaintiff
periodic monthly alimony in the amount of $2500 and
a lump sum alimony payment in the amount of $450,000.
The court also ordered the defendant to contribute to
the plaintiff’s legal fees and costs in the amount of
$250,000. This appeal followed.
The plaintiff subsequently moved for an award of
appellate attorney’s fees. On December 4, 2019, the
defendant filed his opposition thereto. On December
16, 2019, the trial court ordered the defendant to con-
tribute an additional $30,000 to the plaintiff’s legal fees
for her defense of this appeal, finding that the plaintiff
lacked access to liquid funds to pay for her own legal
fees. Thereafter, the defendant filed an amended appeal.
Additional facts and procedural history will be set forth
as necessary.
The defendant first claims that the trial court improp-
erly refused to enforce the parties’ prenuptial agree-
ment and argues that undisputed testimony and docu-
ments established the terms of that agreement. The
plaintiff, on the other hand, takes exception to the char-
acterization of the defendant’s claim. She argues that
although the defendant suggests that the trial court
erred in refusing to enforce the alleged prenuptial agree-
ment, the court never reached enforcement because
the court properly concluded that there were no terms
of an agreement or any associated financial disclosures
that it could construe, much less enforce. We agree
with the plaintiff.1
In its memorandum of decision, the court set forth
the following factual background: ‘‘The parties both
testified that they agreed to have a prenuptial agree-
ment. The defendant testified that the couple started
discussing a prenuptial agreement as early as August
of 2003. He claims that it was the plaintiff’s idea to have
such an agreement and that they both agreed that they
would not marry without one. The defendant testified
that at the time of the marriage, in the fall of 2003, he
had assets in excess of ten million dollars . . . . Sur-
prisingly, despite the defendant’s wealth and dealings
with many lawyers through his different business ven-
tures, he testified that he downloaded a generic prenup-
tial agreement from the Internet and filled it out himself.
The evidence is somewhat contradictory on this issue.
At one point, the defendant claimed that the plaintiff
did the first draft of the agreement, but now testified
that he did it as a proactive move. Regardless, by early
October of 2003, there was an agreement in draft.
‘‘The plaintiff testified that she prepared a financial
disclosure as part of the process and gave the one . . .
page form to the defendant. She agreed that the defen-
dant did some type of financial disclosure as well, and
it might have been on the same one . . . page form
that she had used. When questioned by the plaintiff’s
counsel about the nature of the defendant’s financial
disclosures to the plaintiff, the defendant was rather
unsure of what was specifically included in his disclo-
sure. He did admit that he had not updated the value
of those assets prior to the agreement being finalized.
The defendant did state that his ten million dollars . . .
was more like ten million, four hundred thousand, to
ten million, five hundred thousand dollars . . . by the
first few days of October of 2003. He could not, with
any assurance, recall if he had disclosed all of his vari-
ous bank accounts and their balances, or if he had
disclosed his capital gains income or not. The defendant
likewise could not offer an opinion as to whether or
not such a disclosure was of value and should have
been included on his financial disclosure to the plaintiff.
‘‘The defendant did show a draft prenuptial agree-
ment to Attorney Thomas Benneche who had done
work for the defendant on some of the Oakdale Theater
issues and other business matters throughout the 1990s.
Attorney Benneche, who practiced primarily real estate
law, testified that he had met with his client on another
matter, and at the end of the meeting, the defendant
asked him to look over the agreement. Benneche
obliged his client. He made a copy of the draft to use
for the discussion. He told the defendant that there
were no disclosures attached to the draft and that was
a problem. He also suggested to him that he should
make some other changes. Benneche testified that he
never saw an executed agreement, never saw a revised
draft of the agreement, never saw any of the financial
disclosures and never spoke to the plaintiff about the
agreement again until this litigation commenced. The
attorney also admitted that he had no knowledge of the
financial disclosure that had been made by the defen-
dant including any of the defendant’s pending lawsuits
and any estimated value of any recovery as a result of
such lawsuits. Benneche also testified that he did not
take anyone’s acknowledgement on the prenuptial
agreement and that he cannot find the copy he made
when the defendant was in his office in 2003 some
sixteen . . . years earlier.
‘‘The plaintiff testified that she signed the agreement,
but at that time the defendant had not signed it. She
claims that she gave duplicate originals to the defen-
dant, but after that, she never saw an executed copy,
nor did she ever receive an executed agreement or copy.
It was only years later, once marital difficulties had
arisen, that she asked the defendant for a copy of the
agreement. She testified that she has no clear recollec-
tion as to what the terms might have been or what the
defendant’s financial disclosures might have included.
It was her testimony that although they were living
together informally prior to the marriage and she had
some idea of the defendant’s business ventures from
general conversation, he was a very private person
about his affairs. She knew he had a lot of money,
more than she had, and that they were living well. The
defendant also testified that he did not have a copy of
a signed agreement.’’ Therefore, no signed agreement
was ever presented to the court.
The court explained that ‘‘[t]he defendant attempted
to offer collateral evidence as to the content of the
prenuptial agreement by way of a proposed defendant’s
exhibit ‘C.’ The plaintiff filed a motion in limine to
preclude such an exhibit . . . . The court ruled that it
would hold an evidentiary hearing on the issue. That
hearing took place on January 16, 2019. After the hear-
ing, the court granted the plaintiff’s motion in limine
and precluded the defendant’s proposed exhibit. The
same was marked as the defendant’s exhibit ‘C,’ for
identification only.’’2
The plaintiff’s motion in limine to preclude the defen-
dant’s proposed exhibit, which was referenced by the
court in its memorandum of decision, was filed on July
17, 2018. The plaintiff argued that the defendant’s pro-
posed exhibit K (later marked as exhibit C)3 was not
an executed or enforceable prenuptial agreement, but
rather appeared to be an attempt to ‘‘populate’’ a boil-
erplate prenuptial agreement document. She argued
that proposed exhibit K—an unfinished, unsigned and
undated document—should not be introduced into the
trial as evidence because it was not relevant. At the
preliminary hearing on the plaintiff’s motion on July 19,
2018, the plaintiff’s counsel argued that the defendant
could not proceed on his claim for enforcement of a
prenuptial agreement because no written, signed agree-
ment existed. In an attempt to provide the defendant
with ‘‘the fairest possible trial of all the issues,’’ the
court held an evidentiary hearing based on the defen-
dant’s claim that he could prove the existence and terms
of the alleged missing premarital agreement with other
collateral evidence.
At the conclusion of the evidentiary hearing on the
motion to preclude the defendant’s proposed exhibit,
the court observed that ‘‘it’s clear that the Connecticut
law, both statutory and common law, allows a party to
prove the existence and terms of a contract by parol
evidence if that contract is lost, stolen or destroyed.
Our Uniform Commercial Code provides for such a
procedure. As has been introduced, our Connecticut
Code of Evidence § 10-3 provides for it as well.’’ The
court then found that, although ‘‘[t]here was a premari-
tal agreement’’ that ‘‘was signed prior to the date of the
marriage,’’ there was ‘‘a lack of evidence as to the terms
of the agreement.’’ The court stated: ‘‘The defendant
has offered several forms, which he testified he used,
and the plaintiff agrees that she signed an agreement,
but the court has heard no testimony from the plaintiff
as to what those terms were.’’ The court then stated
that ‘‘[t]he credibility of each parties’ testimony has
been found wanting by the court. For two such people,
one a very successful businessman and the other an
attorney, to rely on an online form for such an important
matter is really quite incredible. It appears to the court
that neither party gave this agreement any serious con-
sideration or thought. This is not the first marriage
for either party. The defendant, by all accounts, was a
wealthy person with children from a previous marriage
to protect. The plaintiff also is a mother of children
from a previous marriage. And yet neither sought any
professional advice from an experienced matrimonial
attorney. The plaintiff sought none at all, and the defen-
dant asked a commercial and real estate lawyer for a
quick look-see, done as a favor without a fee for their
client.’’ The court found that ‘‘even addressing the facts
in the best light to support the defendant, [the court]
cannot find by a preponderance of the evidence that
it knows the terms of the agreement . . . .’’ (Emphasis
added.)
In addition to concluding that the defendant failed
sufficiently to prove the terms of the allegedly lost pre-
nuptial agreement and, thus, that a valid prenuptial
agreement did not exist, the court also found that a
valid agreement did not exist because no specific date
of the alleged agreement had been proven and because
there was a ‘‘conflict as to the nature and depth of [finan-
cial] disclosures.’’ Accordingly, the court concluded that
‘‘[e]xhibit C, formerly known as K, will not be allowed
into evidence. The defendant’s exhibits previously
allowed in during the evidentiary hearing will now be
reclassified as ID only to preserve the record.’’
In the present appeal, the parties disagree as to the
standard of review applicable to the defendant’s claim.
The defendant argues that our standard of review in
this case is plenary because the enforceability of a pre-
nuptial agreement presents a mixed question of fact
and law. The plaintiff disagrees and argues that an abuse
of discretion standard of review is applicable here
because a trial court’s ruling as to whether evidence is
relevant and probative is subject to review for abuse
of discretion. We agree with the plaintiff.
In reviewing the court’s findings and conclusions with
respect to the alleged prenuptial agreement, the trial
court never reached the question of, or conducted a
hearing on, the enforceability of the purported agree-
ment. This is because the trial court made clear that
there existed no valid prenuptial agreement for which
it knew the terms. To be sure, in addressing one of the
defendant’s claims regarding the allocation of marital
property, the court stated: ‘‘The court, ruling that there
is no valid prenuptial agreement, eliminates such a
claim by the defendant . . . .’’ As previously set forth,
the court’s conclusion rested on three separate grounds:
(1) there was ‘‘a lack of evidence as to the terms of the
agreement,’’ (2) the defendant failed to prove a specific
date of the alleged agreement, and (3) the defendant
failed to prove the nature and depth of the financial
disclosures. On those bases, the court precluded the
defendant from introducing exhibit C (formerly exhibit
K) into the dissolution proceedings.
Because the court did not reach the question of
enforcement, we interpret the defendant as challenging
the bases for the court’s decision to exclude exhibit
C—the unsigned, undated, and unfinished boilerplate
prenuptial agreement document—from the dissolution
proceedings. As is well known, ‘‘[t]he trial court’s ruling
on the admissibility of evidence is entitled to great
deference. . . . [T]he trial court has broad discretion
in ruling on the admissibility . . . of evidence . . .
[and its] ruling on evidentiary matters will be over-
turned only upon a showing of a clear abuse of the
court’s discretion.’’ (Internal quotation marks omitted.)
Brown v. Brown, 130 Conn. App. 522, 531, 24 A.3d
1261 (2011).
With this standard in mind, we turn our attention to
the court’s principal basis for excluding exhibit C from
the general dissolution proceedings—namely, that the
document presented was not relevant because the
defendant failed to sufficiently prove the terms of the
allegedly lost or missing prenuptial agreement. The
defendant assigns error to this finding because, in his
view, there was undisputed testimony and documents
to establish the terms of the agreement. The defendant
is arguing essentially that the court abused its discretion
in excluding the proposed exhibit because the court’s
finding that he did not sufficiently prove the contents
of the alleged missing prenuptial agreement through
secondary evidence is clearly erroneous. See, e.g., Host
America Corp. v. Ramsey, 107 Conn. App. 849, 855,
947 A.2d 957 (‘‘[t]he plaintiff first claims that the court
abused its discretion in denying its application for
injunctive relief because the court’s finding that the
defendants proved the former existence, present
unavailability and contents of the defendants’ employ-
ment agreements through secondary evidence is clearly
erroneous’’), cert. denied, 289 Conn. 904, 957 A.2d
870 (2008).
‘‘The factual findings of a trial court must stand . . .
unless they are clearly erroneous or involve an abuse
of discretion.’’ (Internal quotation marks omitted.)
Hammel v. Hammel, 158 Conn. App. 827, 832, 120 A.3d
1259 (2015). ‘‘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 conviction that a mistake has been
committed. . . . Because it is the trial court’s function
to weigh the evidence and determine credibility, we
give great deference to its findings. . . . In reviewing
factual findings, [w]e do not examine the record to
determine whether the [court] could have reached a
conclusion other than the one reached. . . . Instead,
we make every reasonable presumption . . . in favor
of the trial court’s ruling.’’ (Internal quotation marks
omitted.) Id., 832–33.
Section 10-3 of the Connecticut Code of Evidence
provides four instances in which secondary evidence
may be introduced to establish the contents of a docu-
ment: (1) when the originals are lost or destroyed, (2)
when the originals are not obtainable by any reasonably
available judicial process or procedure, (3) when the
originals are in the possession or control of the oppo-
nent, or (4) when the contents relate to a collateral
matter. Conn. Code Evid. § 10-3. ‘‘The cases and the
commentaries are . . . in substantial agreement that
a party must undertake a twofold burden in order to
recover on a document that he cannot produce. Such
a party must demonstrate both (a) the former existence
and the present unavailability of the missing document,
and (b) the contents of the missing document.’’ Con-
necticut Bank & Trust Co. v. Wilcox, 201 Conn. 570,
573, 518 A.2d 928 (1986).
Our careful review of the record reveals that the court
did not err in finding that the defendant failed to prove
the contents of the alleged missing prenuptial agree-
ment. The defendant did, as he claims, present some
testimony from himself and Benneche about the alleged
prenuptial agreement and its terms. In particular, he
introduced certain form prenuptial agreements, such
as exhibit C, which he downloaded from U.S. Legal
Forms, an online publisher of legal documents, in an
attempt to prove the contents of the alleged agreement.
He testified that he made only minor changes to the
document prior to giving it to the plaintiff. He acknowl-
edged, however, that the form had certain areas that
were not populated. He thus testified to the areas he
populated prior to giving the document to the plaintiff.
He further acknowledged that exhibit C did not have
financial disclosures attached to it but testified that the
final agreement did have some type of asset distribution
with the last version.4
Benneche also testified that he did review a draft of
a prenuptial agreement with the defendant and had a
recollection of some but not all of the pages of the
presented form document. He testified, however, that
he never saw the financial disclosures that allegedly
accompanied the document or a copy of an executed
prenuptial agreement between the parties. Benneche
also indicated that he never witnessed the parties sign
the document.
Although the defendant did present some evidence
to prove the contents of the alleged missing agreement,
we disagree with the defendant’s contention that the
court impermissibly favored the plaintiff’s lack of mem-
ory of the terms of the alleged prenuptial agreement
and completely overlooked the evidence he proffered
of the contents of the alleged prenuptial agreement.
The defendant fails to appreciate ‘‘that [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 omitted.) Ravetto v. Triton
Thalassic Technologies, Inc., 285 Conn. 716, 728, 941
A.2d 309 (2008). In the court’s memorandum of deci-
sion, it found that the plaintiff’s testimony was ‘‘gener-
ally credible throughout the trial,’’ and explicitly stated
that ‘‘[t]he court finds significant portions of the defen-
dant’s testimony not to be credible, including but not
limited to his description of the plaintiff’s behavior dur-
ing his period of depression and his allegations of fraud
raised against the plaintiff . . . .’’
The court also explicitly stated at the conclusion of
the evidentiary hearing on the motion in limine regard-
ing the proposed exhibit that ‘‘[t]he credibility of each
parties’ testimony [had] been found wanting by the
court.’’ This includes the testimony of the defendant.
The court further found incredible that the defendant,
‘‘a very successful businessman,’’ and the plaintiff, an
attorney, would ‘‘rely on an online form for such an
important matter . . . .’’ The court was permitted, in
its role as fact finder, to determine what weight, if any,
to give the testimony presented by the defendant. It is
clear little weight was given. Deferring, as we must, to
the trial court’s assessments concerning credibility, we
have little difficulty concluding that the evidence amply
supported the trial court’s finding that the defendant
did not sufficiently establish the terms of the alleged
missing prenuptial agreement. See D. S. v. R. S., 199
Conn. App. 11, 18, 234 A.3d 1150 (2020) (‘‘[a]n appellate
court must defer to the trier of fact’s assessment of
credibility because [i]t is the [fact finder] . . . [who
has] an opportunity to observe the demeanor of the
witnesses and the parties; thus [the fact finder] is best
able to judge the credibility of the witnesses and to
draw necessary inferences therefrom’’ (internal quota-
tion marks omitted)). We therefore cannot conclude
that the court abused its discretion in excluding the
defendant’s proposed exhibit, and, consequently, did
not err in failing to enforce the alleged prenuptial agree-
ment.5
II
We turn next to the decision of the court ordering the
defendant to contribute $280,000 toward the plaintiff’s
attorney’s fees. The American rule, followed by Con-
necticut, generally requires that each party compensate
his or her own lawyers. See, e.g., Mangiante v. Niemiec,
98 Conn. App. 567, 570, 910 A.2d 235 (2006). This rule,
like almost every general rule, admits of various excep-
tions. See, e.g., Lederle v. Spivey, 332 Conn. 837, 843–44,
213 A.3d 481 (2019); Ramin v. Ramin, 281 Conn. 324,
351, 915 A.2d 790 (2007).
One such exception to the American rule is when the
imposition of attorney’s fees is permitted by statute.
For example, General Statutes § 46b-62 (a) authorizes
a trial court to award attorney’s fees in a dissolution
proceeding when appropriate in light of the ‘‘respective
financial abilities’’ of the parties and the equitable fac-
tors listed in General Statutes § 46b-82. Our Supreme
Court has set forth ‘‘three broad principles by which
these statutory criteria are to be applied. First, such
awards should not be made merely because the obligor
has demonstrated an ability to pay. Second, where both
parties are financially able to pay their own fees and
expenses, they should be permitted to do so. Third,
where, because of other orders, the potential obligee
has ample liquid funds, an allowance of [attorney’s] fees
is not justified.’’ (Internal quotation marks omitted.)
Hornung v. Hornung, 323 Conn. 144, 169–70, 146 A.3d
912 (2016).
‘‘A determination of what constitutes ample liquid
funds . . . requires . . . an examination of the total
assets of the parties at the time the award is made.
. . . Anderson v. Anderson, 191 Conn. 46, 59, 463 A.2d
578 (1983). We have recognized, however, that [t]he
availability of sufficient cash to pay one’s attorney’s
fees is not an absolute litmus test . . . . [A] trial court’s
discretion should be guided so that its decision regard-
ing attorney’s fees does not undermine its purpose in
making any other financial award. Devino v. Devino,
190 Conn. 36, 38–39, 458 A.2d 692 (1983); see also, e.g.,
Grimm v. Grimm, 276 Conn. 377, 398, 886 A.2d 391(2005) (not awarding $100,000 in attorney’s fees to wife
would have necessarily eviscerate[d] any benefit she
would have received from $100,000 lump sum alimony
award), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296,
164 L. Ed. 2d 815 (2006).’’ (Internal quotation marks
omitted.) Hornung v. Hornung, supra, 323 Conn. 170.
‘‘Whether to allow counsel fees . . . and if so in what
amount, calls for the exercise of judicial discretion.
. . . An abuse of discretion in granting counsel fees
will be found only if [an appellate court] determines
that the trial court could not reasonably have concluded
as it did.’’ (Internal quotation marks omitted.) Giordano
v. Giordano, 203 Conn. App. 652, 661, 249 A.3d 363(2021).
In the present appeal, the defendant argues that the
court improperly ordered him to pay the plaintiff
$280,000 toward her attorney’s fees. He claims that the
court (1) abused its discretion in awarding the fees
under § 46b-62 because the plaintiff has sufficient funds
from which to pay her attorneys, (2) improperly ordered
the attorney’s fees because the court awarded the fees
for two acts of litigation misconduct despite finding
that one of the two had a ‘‘colorable theory,’’ and (3)
improperly ‘‘awarded $250,000 for the plaintiff’s trial
counsel fees despite it being certainly beyond the
court’s ability to fully understand the amount of the
preparation time expended by the plaintiff’s counsel in
defending against the litigation misconduct.’’ (Internal
quotation marks omitted.) We disagree with the defen-
dant. Because we conclude that the court’s award of
attorney’s fees was proper in accordance with § 46b-
62, we need not reach the defendant’s additional two
claims that relate to the court’s second independent
basis for awarding attorney’s fees, to wit, that the defen-
dant engaged in litigation misconduct.
The following additional facts help inform our discus-
sion. The plaintiff incurred nearly $560,000 in legal fees
related to all aspects of the trial court case. The retainer
fee for the appeal added another $40,000, bringing her
total legal fees to nearly $600,000. The plaintiff’s most
recent financial affidavit dated May 2, 2019, showed
total assets of $552,110, of which more than 50 percent
of those assets are in deferred income retirement funds.
Only approximately $151,732 is held in liquid assets.
The defendant’s most recent financial affidavit dis-
closes that he owns assets totaling $973,258. The court
found, however, that many of those assets are underval-
ued by the defendant. Nevertheless, the court stated
that ‘‘looking only at his liquid, noncontroversial hold-
ings, they total almost . . . $850,000.’’
In the court’s memorandum of decision, the court
methodically went through the plaintiff’s purported jus-
tifications for entitlement to attorney’s fees, addressing
the plaintiff’s arguments that counsel fees were appro-
priate pursuant to § 46b-62 (a), Ramin v. Ramin, supra,281 Conn. 324, and Maris v. McGrath, 269 Conn. 834,
835, 850 A.2d 133 (2004). After a thorough analysis, the
court concluded that an award of counsel fees based
on discovery misconduct, as discussed in Ramin, was
not appropriate. The court, however, determined that
an award of legal fees was warranted under two sepa-
rate, independent bases—pursuant to § 46b-62 (a) and
because of the defendant’s litigation misconduct.
Accordingly, the court ordered the defendant to contrib-
ute $250,000 toward the plaintiff’s legal fees. After con-
sidering the plaintiff’s motion for appellate fees and the
defendant’s opposition thereto, the court ordered the
defendant to contribute an additional $30,000 to the
plaintiff’s legal fees for her defense of this appeal.
In the present case, we find no support in the record
for the defendant’s claim that the court abused its dis-
cretion in making the award of counsel fees that it did.
The defendant argues in a rather conclusory manner
that ‘‘the plaintiff has the resources to pay her attor-
neys’’ and cites to various cases that are easily distin-
guishable from the present case. One such case is Hor-
nung v. Hornung, supra, 323 Conn. 144. As this court
observed: ‘‘In Hornung, the court awarded the plaintiff
$100,000 in trial attorney’s fees and $40,000 in appellate
attorney’s fees. . . . The defendant claimed on appeal
that ‘the plaintiff received ample liquid funds from the
trial court’s judgment with which to pay her attorney’s
fees, and that the trial court’s conclusion that not award-
ing her attorney’s fees would undermine its other
awards to her was unreasonable.’ . . . Our Supreme
Court agreed with the defendant. It first considered that
the trial attorney’s fees award ‘represent[ed] a very
small portion of the liquid assets awarded to the plaintiff
in the trial court’s judgment.’ . . . Specifically, [the]
court noted that ‘the plaintiff [was to] receive liquid
assets totaling $2,577,000 within three months of the
judgment’ and that the fee award ‘represent[ed] only 4
percent of this amount.’ . . . The plaintiff was to
receive ‘$2,082,000, the amount owed to her under the
[parties’ prenuptial] agreement, within sixty days of the
judgment; $40,000 per month in periodic alimony and
child support, starting twelve days from the judgment;
and $7.5 million in lump sum alimony, payable in bian-
nual installments of $375,000, starting two and one-half
months from the judgment.’ . . . [Our] Supreme Court
concluded that, ‘given the vast liquid assets awarded
to the plaintiff, and the modest nature of the attorney’s
fees when compared with those assets, the equitable
factors in § 46b-82, as incorporated into § 46b-62, do
not justify the award.’ ’’ (Citations omitted.) Anketell v.
Kulldorff, 207 Conn. App. 807, 840–41, 263 A.3d 972,
cert. denied, 340 Conn. 905, 263 A.3d 821 (2021).
This is not such a case. As the plaintiff correctly
notes, $280,000 is 185 percent of the plaintiff’s liquid
assets. The defendant does not challenge the court’s
liquid asset finding as clearly erroneous, but instead
resorts to generalized arguments that ‘‘the plaintiff has
sufficient assets to pay her attorneys.’’ Even if one were
to add the $450,000 lump sum alimony award (which
the plaintiff did not have access to because the trial
court denied her motion to lift the automatic stay) to
the amount of the plaintiff’s liquid assets, the counsel
fee award is still 47 percent of that total. See Hornung v.
Hornung, supra, 323 Conn. 176 (‘‘attorney’s fees awards
reflecting a more significant portion of the payee’s lump
sum alimony award, thereby potentially undermining
that award, have been held proper, especially when
equitable factors support the award’’); see also Costa
v. Costa, 11 Conn. App. 74, 75–78, 526 A.2d 4 (1987)
(attorney’s fees award of $6000, amounting to 30 per-
cent of $20,000 lump sum alimony award, not including
periodic alimony award, was not abuse of discretion
where husband had $280,000 in assets, wife had
$170,000 in assets, and husband earned $58,400 per
year).
The claim of error raised by the defendant, that the
trial court erred in awarding the plaintiff $280,000 in
attorney’s fees, is without merit. ‘‘An abuse of discretion
in granting [attorney’s] fees will be found only if [an
appellate court] determines that the trial court could
not reasonably have concluded as it did.’’ (Internal quo-
tation marks omitted.) Misthopoulos v. Misthopoulos,
297 Conn. 358, 386, 999 A.2d 721 (2010). Having thor-
oughly examined the record, we cannot so hold.6
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also argues that the appeal is moot with respect to the
alleged prenuptial agreement because the defendant fails to challenge the
trial court’s striking of count one of his counterclaim, which pleaded the
existence of a prenuptial agreement, and that his briefing on appeal is
inadequate. We disagree. Although the defendant does not explicitly state
that he is challenging the court’s motion to strike, it is clear that in challenging
the judgment of dissolution and financial orders generally, he specifically
takes exception to the court’s finding that a valid prenuptial agreement did
not exist. That is precisely the basis on which the motion to strike was
granted, and the defendant briefs all three independent bases on which the
court’s decision is predicated. See Leonova v. Leonov, 201 Conn. App. 285,
314–15, 242 A.3d 713 (2000) (‘‘although precedent establishes that an appeal
or claim of error can be rendered moot if the appellant neglects to challenge
every independent ground on which the challenged ruling may be sustained,
the defendant here has challenged both findings on which the finding of
contempt was predicated’’), cert. denied, 336 Conn. 906, 244 A.3d 146 (2021).
The defendant provides adequate analysis, legal support, and relevant cita-
tions to the record for our review of his claim on the merits. Accordingly, we
conclude that the defendant’s claim is neither moot nor inadequately briefed.
2
The court explained: ‘‘As with other issues in this case, the matter of
the alleged prenuptial agreement had been litigated more than once prior
to the court’s ruling as to defendant’s exhibit ‘C,’ for identification only.
Judge Albis granted a motion to strike regarding the alleged agreement on
March 31, 2016 . . . . This court ordered the defendant not to ask questions
about the alleged agreement in a deposition on September 8, 2016 . . . .
Judge Simon refused to allow the defendant to plead the alleged agreement
on October 12, 2016 . . . and Judge Nastri’s orders regarding the plaintiff’s
motion to strike the defendant’s special defenses regarding the prenuptial
agreement issued on August 29, 2017 . . . . All the above referenced rulings
prohibited the pleading of the prenuptial agreement except for the last ruling
which allowed its pleading as a defense only to allegations of fraudulent
conveyances by the defendant to his adult sons.’’
3
For clarification purposes, during the evidentiary hearing that was held
regarding the alleged lost prenuptial agreement, defendant’s proposed
exhibit K was marked as exhibit C and admitted as a full exhibit for purposes
of that hearing only. Following that hearing, the court reclassified and
referred to that exhibit as exhibit C for identification only. Thus, proposed
exhibit K and exhibit C are the same document.
4
When asked whether the last version contained an asset distribution,
the defendant responded in the affirmative but stated: ‘‘Well, not necessar-
ily attached.’’
5
Because we conclude that exclusion of the defendant’s proposed exhibit
was proper on this basis, we need not reach the other two independent
bases the court set forth for exclusion of the document.
6
We note that, even if the plaintiff did have ample liquid funds to pay for
her own counsel fees, the court’s award of counsel fees would still be
justified because the record supports the conclusion that the failure to make
such an award would undermine the court’s previous orders. See Grimm
v. Grimm, supra, 276 Conn. 397 (‘‘[A]n award of attorney’s fees is justified
even where both parties are financially able to pay their own fees if the
failure to make an award would undermine its prior financial orders . . . .
The trial court need not make an express finding with respect to whether
the fee award is necessary to avoid undermining the other financial orders,
so long as the record supports that conclusion.’’ (Citations omitted; internal
quotation marks omitted.)).