Chang v. Chang

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
MELISSA CHANG v. DAVID CHANG
(AC 38201)
Alvord, Keller and Gruendel, Js.
Argued December 6, 2016—officially released February 21, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Pinkus, J.)
Kenneth J. Bartschi, with whom was Karen L. Dowd,
for the appellant (defendant).
Gary I. Cohen, with whom, on the brief, was Yakov
Pyetranker, for the appellee (plaintiff).
Opinion
ALVORD, J. The defendant, David Chang, appeals
from the financial orders entered in connection with
the judgment rendered by the trial court dissolving his
marriage to the plaintiff, Melissa Chang. On appeal, the
defendant claims that the court improperly (1) deter-
mined that the premarital agreement between the par-
ties was unenforceable because his disclosure of certain
assets was inadequate, and (2) concluded that it could
award alimony and divide certain solely owned assets
even if the premarital agreement was enforceable. We
affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to the defendant’s appeal. The court dissolved the
parties’ eleven year marriage on June 15, 2015. At the
time of the dissolution, the parties had two minor chil-
dren, ages ten and five. Following a seven day trial, the
court made the following findings in its memorandum
of decision: (1) neither party was more responsible for
the breakdown of the marriage; (2) the parties signed
a premarital agreement approximately ten days prior
to their marriage; (3) the plaintiff, who has a Ph.D. in
psychology, was earning approximately $50,000 a year
at the time their first child was born; (4) the plaintiff
stopped working altogether after their second child was
born with a neuromuscular disorder; (5) the defendant
has a masters degree in computer science and is
employed as a trader and portfolio manager; and (6)
the defendant earned approximately $600,000 at the
time of the marriage and $1,644,000 in 2013.
At trial, the defendant claimed that the parties’ 2003
premarital agreement was enforceable, and that the
terms of that agreement provided that all of the assets
in his name only, whether accumulated before or during
the marriage, belonged to him and could not be awarded
to the plaintiff. Additionally, he claimed that the
agreement precluded an award of alimony to the plain-
tiff. The plaintiff claimed that the agreement was invalid
and unenforceable, and she sought an equitable division
of all of the marital assets as well as an award of
alimony.1
The court determined that the parties’ premarital
agreement was unenforceable. In its memorandum of
decision, the court referred to the written financial dis-
closures appended to the premarital agreement, the
financial affidavits that the parties had prepared at that
time, and the testimony of the plaintiff’s expert, who
testified at trial as to the value of the defendant’s inter-
ests in certain family partnerships and corporations at
the time of the execution of the agreement. The defen-
dant had not listed a value for the family entities in his
2003 financial affidavit, claiming that they were ‘‘too
difficult or speculative to value.’’2 The court determined
that the defendant’s claim was ‘‘incorrect,’’ and, accord-
ingly, it concluded that the defendant ‘‘failed to meet his
burden to inform and the premarital agreement [was]
unenforceable.’’
The court then considered the assets in the marital
estate, together with the applicable statutory factors
enumerated in General Statutes §§ 46b-81 and 46b-82,
and entered several financial orders. In addition to
awarding the plaintiff alimony for eight years, the court
awarded her a lump sum property settlement and inter-
ests in various bank accounts, stocks, bonds, and
mutual funds. Significantly, in a footnote in its decision,
the court made the following observation: ‘‘The court
finds no express provision in the premarital agreement
that would prevent spousal support. The court finds
that the definition of separate property in the premarital
agreement does not include accounts solely in the
defendant’s name which were not listed on schedule A
of the premarital agreement unless received by bequest,
devise, descent, or distribution by other instrument
upon death or by gift or were property acquired in
exchange for the property listed on schedule A. Accord-
ingly, the orders in this decision would be the same
even if it found the premarital agreement to be valid.’’
(Emphasis added.)
The defendant filed a motion for reargument,
requesting that the court reconsider its determination
that the premarital agreement was invalid. Additionally,
the defendant argued that the orders in the decision
would not be the same if the court had determined
that the premarital agreement was valid because the
agreement did not provide for alimony and it did not
provide for awarding the plaintiff any interest in the
accounts held solely in the defendant’s name. The court
denied the defendant’s motion without discussion. This
appeal followed.
The defendant argues that the court improperly deter-
mined that the premarital agreement was unenforceable
because his disclosure of his interests in certain family
partnerships and corporations was inadequate.3 We
agree with the trial court’s statement that the financial
orders in this dissolution action would have been per-
missible even if the premarital agreement had been
determined to be enforceable. That is, the agreement
did not preclude awarding the plaintiff alimony or inter-
ests in the assets acquired during the marriage, even if
held solely in the defendant’s name. Accordingly, we
need not determine whether the defendant’s disclosure
with respect to his interests in the family partnerships
and corporations was inadequate, which would render
the marital agreement unenforceable.
‘‘[A]n antenuptial agreement is a type of contract
and must, therefore, comply with ordinary principles
of contract law. . . . [A]ntenuptial agreements are to
be construed according to the principles of construction
applicable to contracts generally. . . . [A]ntenuptial
agreements relating to the property of the parties, and
more specifically, to the rights of the parties to that
property upon the dissolution of the marriage, are gen-
erally enforceable . . . [if] the circumstances of the
parties at the time the marriage is dissolved are not so
beyond the contemplation of the parties at the time the
contract was entered into as to cause its enforcement
to work injustice. . . . [T]he party seeking to challenge
the enforceability of the antenuptial contract bears a
heavy burden. . . . This heavy burden comports with
the well settled general principle that [c]ourts of law
must allow parties to make their own contracts. . . .
It is established well beyond the need for citation that
parties are free to contract for whatever terms on which
they may agree. . . . Whether provident or improvi-
dent, an agreement moved on calculated considerations
is entitled to the sanction of the law . . . .’’ (Internal
quotation marks omitted.) Beyor v. Beyor, 158 Conn.
App. 752, 757, 121 A.3d 734, cert. denied, 319 Conn. 933,
125 A.3d 206 (2015).
‘‘A contract must be construed to effectuate the intent
of the parties, which is determined from the language
used interpreted in the light of the situation of the
parties and the circumstances connected with the trans-
action. . . . [T]he intent of the parties is to be ascer-
tained by a fair and reasonable construction of the
written words and . . . the language used must be
accorded its common, natural and ordinary meaning
and usage where it can be sensibly applied to the subject
matter of the contract. . . .
‘‘Where the language of the contract is clear and
unambiguous, the contract is to be given effect
according to its terms. . . . If a contract is unambigu-
ous within its four corners, intent of the parties is a
question of law requiring plenary review. . . . When
the language of a contract is ambiguous, the determina-
tion of the parties’ intent is a question of fact, and
the trial court’s interpretation is subject to reversal on
appeal only if it is clearly erroneous.’’ (Internal quota-
tion marks omitted.) Lisko v. Lisko, 158 Conn. App.
734, 738–39, 121 A.3d 722 (2015). ‘‘It is hornbook law
that courts do not rewrite contracts for parties. . . .
[A] court simply cannot disregard the words used by
the parties or revise, add to, or create a new agreement.’’
(Internal quotation marks omitted.) Hammond v. Ham-
mond, 145 Conn. App. 607, 612–13, 76 A.3d 688 (2013).
In the present case, the defendant challenges the
court’s award of alimony to the plaintiff and its division
of certain marital assets between the parties that had
been held solely in the defendant’s name. Specifically,
the defendant claims that ‘‘[t]he agreement does not
expressly provide whether or not the court would have
authority to order alimony,’’ which precluded such an
award because ‘‘[t]he parties expressly agreed not to
seek relief that was not set forth in the agreement.’’
The defendant argues that ‘‘it was not necessary for
the agreement to use talismanic language such as ‘the
parties waive alimony’ to preclude an alimony award.’’
With respect to his claim regarding solely held assets,
the defendant specifically challenges the awards to the
plaintiff referenced in paragraph 17 of the financial
orders in the memorandum of decision. In paragraph
17, the court ordered that six designated bank accounts
be ‘‘divided equally by the parties resulting in a payment
of not less than $1,267,775 to the plaintiff.’’ The defen-
dant argues that those accounts, which were held solely
in the defendant’s name, were not subject to division
because ‘‘the agreement provides for the division of
joint property, which is defined as jointly held property.
That definition necessarily precludes solely held assets
and therefore the parties were enjoined from asking
the court to divide such assets.’’ According to the defen-
dant, the money deposited in those accounts, even
though earned during the marriage and not listed as
premarital assets in the agreement, belonged solely
to him.
In claiming that alimony is precluded under the terms
of the premarital agreement, the defendant relies on
the following provisions to support his claims. One of
the twelve ‘‘whereas’’ clauses provides: ‘‘WHEREAS,
both parties wish to protect their respective property,
estate and income from any claims by the other that
may arise under the laws of any state or country by
virtue of their forthcoming marriage . . . .’’4 (Emphasis
added.) Additionally, the defendant argues that para-
graph 5.13 of the agreement clearly expresses the par-
ties’ intent that an award of alimony would be
prohibited if the parties divorced. Paragraph 5.13 pro-
vides: ‘‘This Agreement, in the event of a proceeding
for dissolution of marriage, divorce or legal separation
of the parties’ marriage, shall be submitted to the court.
The parties will request said court to incorporate the
terms of this Agreement pertaining to property divi-
sion in the decree. Notwithstanding the same, this
Agreement shall not be merged within a decree but
shall survive the same and be binding on the parties
for all time. Both parties shall be estopped from
requesting the court for orders different from or incon-
sistent with the terms of this Agreement. Both parties
expressly will agree to be enjoined (including ex parte
injunction) from requesting any relief except as set forth
within this Agreement.’’ (Emphasis added.)
Because the premarital agreement does not expressly
provide that alimony may be awarded in their dissolu-
tion action, the defendant argues that those provisions
in paragraph 5 must be interpreted to mean that it is
prohibited. In other words, although the parties have
not incorporated the simple phrase ‘‘the parties waive
alimony’’ into the premarital agreement, the other provi-
sions in the agreement, when read in combination, evi-
dence the fact that they have abandoned all claims to
alimony. The plaintiff responds that the defendant is
attempting to have ‘‘an alimony waiver read into the
agreement.’’ She argues that such a waiver should not
be inferred when the agreement ‘‘is silent as to an affir-
mative statutory right.’’ We agree with the plaintiff.
We conclude that the court properly construed the
premarital agreement as not precluding the award of
alimony to the plaintiff. There is no provision in the
agreement that even tangentially governs the parties’
rights to alimony upon the dissolution of the marriage.
In order for the plaintiff to assent to the waiver of such
a right, she would have to be aware that, by signing the
premarital agreement, she was relinquishing all claims
to alimony in the event of a dissolution of the marriage.5
‘‘[A] waiver is ordinarily an intentional relinquishment
or abandonment of a known right or privilege. An effec-
tive waiver presupposes full knowledge of the right or
privilege allegedly [being] waived and some act done
designedly or knowingly to relinquish it. . . . More-
over, the waiver must be accomplished with sufficient
awareness of the relevant circumstances and likely con-
sequences.’’ (Internal quotation marks omitted.) Perri-
cone v. Perricone, 292 Conn. 187, 207, 972 A.2d 666(2009).6
In the absence of a clear and unequivocal waiver of
alimony in the premarital agreement, we decline to infer
a knowing and voluntary waiver on the basis of the
language contained in paragraph 5.13 of that agreement.
Not only is the word alimony conspicuously absent
from that paragraph, but we also note that such para-
graph states that its terms are to be incorporated into
and pertain to any ‘‘property division’’ in the decree of
dissolution. We will not impute knowledge to the plain-
tiff that she was aware that she was relinquishing all
rights to alimony on the basis of the language in para-
graph 5.13 in the absence of any provisions directed to
alimony awards in the premarital agreement.
We next address the defendant’s claim that the
agreement precluded the court from awarding the plain-
tiff any interests in certain bank accounts held solely
in the defendant’s name, i.e., the six bank accounts
listed in paragraph 17 of the court’s financial orders.
The defendant points to paragraphs 2.1, 2.3, 3.1, 3.2,
3.3, and 5.13 of the premarital agreement as being sup-
portive of his argument that only interests in joint prop-
erty could be awarded to the plaintiff. Paragraph 2.1
provides in relevant part that ‘‘[t]he parties do hereby
acknowledge and represent to each other that there
may be jointly held property which they will acquire
together during the course of their marriage. This would
include all sums deposited into any bank accounts in
their joint names as well as any substitutions thereof,
or increments thereto. . . .’’ (Emphasis added.) Para-
graph 2.3 provides that ‘‘[i]n the event the parties’ mar-
riage ends in divorce, dissolution of marriage,
annulment or legal separation, the joint property shall
be divided as determined by mutual agreement or by
order of a court of competent jurisdiction.’’ Paragraph
3.1 provides: ‘‘In the event that either party hereto shall
at any time subsequent to the parties’ marriage, file an
action in court for divorce, dissolution of marriage,
annulment or legal separation (hereinafter ‘an action’
or ‘the action’), the parties hereto waive, discharge and
release any and all claims, demands, rights and interests
to which they may be entitled in connection with ‘the
action’ with respect to an interest in the Separate Prop-
erty of the other party as defined herein.’’ Paragraphs
3.2 and 3.3 provide exceptions to paragraph 3.1,
addressing the marital residence of the parties and a
tax free lump sum payment to the plaintiff. Paragraph
5.13, as previously quoted, states that the parties agree
to refrain from requesting any relief other than that
provided for in the agreement.
The plaintiff responds that the premarital agreement
does not expressly address how assets acquired after
the marriage and held solely in the name of one party
are to be divided. The agreement does, however, define
separate property, as distinguished from joint property,
in paragraph 1.1. Paragraph 1.1 provides in relevant
part: ‘‘The following shall constitute and remain the
Separate Property of the respective parties: (a) The
property listed in Schedule A ([defendant’s] Financial
Affidavit), and Schedule B ([plaintiff’s] Financial Affida-
vit); (b) Property acquired at any time after the date of
Schedules A and B of this Agreement, if acquired by
bequest, devise, descent, distribution by other instru-
ments upon death, or by gift . . . (f) Property acquired
in exchange for such property and income identified
in this paragraph 1.1, the proceeds of sale thereof and
property acquired with such proceeds or with other
Separate Property.’’
As previously stated, the defendant deposited income
that he earned during the marriage into the bank
accounts designated in paragraph 17 of the court’s
financial orders. Because those accounts were held
solely in his name, he claims that they constitute ‘‘sepa-
rate property’’ under the terms of the premarital
agreement. He argues that if the court had found the
premarital agreement to be enforceable, the court
would have been prohibited from awarding any interest
in that ‘‘separate property’’ to the plaintiff. We disagree.
As previously stated, the court addressed this claim
of the defendant in footnote 1 of its memorandum of
decision: ‘‘The court finds that the definition of separate
property in the premarital agreement does not include
accounts solely in the defendant’s name which were
not listed on schedule A of the premarital agreement
unless received by bequest, devise, descent, or distribu-
tion by other instrument upon death or by gift or were
property acquired in exchange for the property listed
on schedule A.’’ Significantly, the defendant does not
dispute that the challenged bank accounts consist of
income that he earned during the marriage. Further, he
makes no claim that those assets were acquired prior to
the marriage and were listed on his financial affidavit’s
schedule A that was attached to the premarital
agreement. We therefore conclude that the court prop-
erly determined that there were no provisions in the
premarital agreement that would have precluded it from
equitably dividing those bank account assets as part of
the marital estate and that its financial orders would
have been the same even if the court had determined
that the agreement was enforceable.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The parties agreed that the defendant’s child support obligation, pursuant
to the guidelines, was $636 per week.
2
In Paragraph 5.1 of the premarital agreement, the defendant did acknowl-
edge that the family entities could be of significant value and could have
significant future value potentially in excess of several million dollars.
3
Premarital agreements entered into on or after October 1, 1995, are
governed by the Connecticut Premarital Agreement Act, General Statutes
§ 46b-36a et seq. Section 46b-36g (a) provides in relevant part: ‘‘A premarital
agreement or amendment shall not be enforceable if the party against whom
enforcement is sought proves that . . . (3) [b]efore execution of the
agreement, such party was not provided a fair and reasonable disclosure
of the amount, character and value of property, financial obligations and
income of the other party . . . .’’ See Beyor v. Beyor, 158 Conn. App. 752,
757, 762, 121 A.3d 734, cert. denied, 319 Conn. 933, 125 A.3d 206 (2015).
4
‘‘As a general rule, [r]ecitals in a contract, such as whereas clauses, are
merely explanations of the circumstances surrounding the execution of the
contract, and are not binding obligations unless referred to in the operative
provisions of the contract.’’ (Internal quotation marks omitted.) Tomey
Realty Co. v. Bozzuto’s, Inc., 168 Conn. App. 637, 653 n.10, 147 A.3d 166(2016).
5
‘‘[I]f alimony is not awarded in a final dissolution decree, it cannot be
awarded in the future based on changed circumstances.’’ Passamano v.
Passamano, 228 Conn. 85, 90 n.7, 634 A.2d 891 (1993).
6
Black’s Law Dictionary defines waiver as ‘‘[t]he voluntary relinquishment
or abandonment—express or implied—of a legal right or advantage . . . .
The party alleged to have waived a right must have had both knowledge of
the existing right and the intention of forgoing it.’’ Black’s Law Dictionary
(7th Ed. 1999).