Antonucci v. Antonucci

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MARIANNA ANTONUCCI v. VINCENT ANTONUCCI
(AC 36842)
Sheldon, Keller and Schaller, Js.
Argued September 21, 2015—officially released March 29, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Shay, J.)
Thomas M. Cassone, for the appellant (plaintiff).
Kevin F. Collins, with whom, on the brief, was Ami
Jayne Wilson, for the appellee (defendant).
Opinion
KELLER, J. The plaintiff, Marianna Antonucci,
appeals from the trial court’s award of lump sum ali-
mony to the defendant, Vincent Antonucci, in the con-
text of its judgment dissolving the parties’ twenty-five
year marriage. The plaintiff claims that the court erred
by (1) failing to enforce an agreement between the
parties and the plaintiff’s mother, whereby the plaintiff’s
mother transferred her real property (property) to the
plaintiff and retained a life estate in it for herself, condi-
tioned on the defendant waiving any claims to the prop-
erty; (2) reopening the evidence sua sponte in order to
allow the parties the opportunity to offer additional
evidence regarding the valuation of the plaintiff’s
remainder interest in the property; (3) adopting the
valuation of the plaintiff’s remainder interest in the
property proposed by one of the defendant’s expert
witnesses, William F. Murray, who assertedly was not
qualified to appraise the value of remainder interests
in residential real estate and had not used a relevant
discount rate in calculating the value of the plaintiff’s
remainder interest in the property; and (4) failing to
consider adequately the parties’ current financial cir-
cumstances in awarding the defendant lump sum ali-
mony, payable by the plaintiff in ten annual
nonmodifiable installments, each equaling more than
40 percent of her annual gross income, commencing
just three months from the date of the judgment of dis-
solution.
On the basis of our conclusion that the court erred
in its analysis with respect to the enforceability of the
agreement between the parties and the plaintiff’s
mother, and in determining the value of the plaintiff’s
remainder interest in the property, we reverse the judg-
ment of the trial court, in part, with respect to its finan-
cial orders. We remand the case to the trial court for
further proceedings on the issue of whether the parties’
agreement with the plaintiff’s mother is enforceable
and for reconsideration of all financial orders.1
The plaintiff filed an action for dissolution of the
parties’ marriage on August 10, 2011. The trial initially
took place over a period of four days in August, 2013.
After both parties had rested, the trial court, sua sponte,
on November 1, 2013, ordered the evidence reopened,
indicating that, although it had accepted the methodol-
ogy of the plaintiff’s expert for determining the value
of the plaintiff’s remainder interest in the property, it
believed that one of the variables in the expert’s for-
mula, the discount rate utilized by the plaintiff’s expert
to determine the net present value of the remainder
interest, was inappropriate. The court then gave the
parties an opportunity to present additional evidence
on March 14, 2014, as to an appropriate discount rate.
The court rendered a judgment of dissolution on March
21, 2014.
In rendering its decision, the court found the follow-
ing facts: ‘‘The plaintiff . . . whose birth name was
Marianna Sandolo, and the defendant . . . were mar-
ried in Stamford, Connecticut, on April 10, 1988. They
are the parents of two adult children . . . . The parties
have been living separate and apart for approximately
two years. Neither party graduated from high school,
and both are currently employed. The [plaintiff] is a
co-owner with her mother of a family restaurant in
Stamford, and the [defendant] is a heavy equipment
operator for Lee Rizzuto . . . . Both have comparable
incomes of approximately $50,000 per annum, and both
have, apart from a couple of relatively brief periods of
unemployment by the [defendant], been steadily
employed throughout the marriage. Except for some
minor conditions, each enjoys generally good health.
Neither claims alimony from the other.
‘‘Throughout the marriage, the couple benefited from
substantial gifts from their respective families, by far
the greater coming from the [plaintiff’s] parents.
Remarkably, they have managed to save nothing—no
safety net; no retirement accounts. While the [plaintiff]
generally paid the bills, both are relatively unsophisti-
cated when it comes to finances. Neither was able to
live within their means, enabled no doubt by the gener-
osity of the [plaintiff’s] parents. They bought, improved,
and sold some real properties, yet their investments
had marginal returns at best. For the first ten years of
marriage, and later, at the end, they lived in her parents’
home. Prior to moving back with the [plaintiff’s] mother,
the couple [was] residing at 501 Roxbury Road, Stam-
ford. They sold this property in June, 2007. . . . They
own several automobiles between them, as well as a
modest time-share in Florida.
‘‘The principal bone of contention is the [plaintiff’s]
interest in the real property at 85 Doolittle Road in
Stamford, formerly the residence of the [plaintiff’s] par-
ents. On November 9, 2005, following the death of the
[plaintiff’s] father, her mother, Filomena Sandolo, trans-
ferred her interest in the real property to her daughter
by way of a quitclaim deed . . . while at the same time
retaining a life estate in the property. The conveyance
of the real estate was made pursuant to a certain
Agreement . . . also dated November 9, 2005, signed
by both parties and Filomena Sandolo, which contained
the further proviso that the [defendant] waive any
claims thereto, particularly in the event of a divorce.
. . .
‘‘After the death of her husband . . . Sandolo
wanted to remain in her own home; however, she did
not wish to live there alone. Accordingly, she asked the
[defendant] and [plaintiff] if they would like to live with
her again. She indicated that she would make some
substantial improvements to the home if they would
do so. . . . [B]oth parties agreed. [Sandolo] called her
family attorney, Joseph Pankowski, to draft certain doc-
uments and to bring them to her home. He did so on
November 9, 2005.
‘‘Each party called upon an expert to value the real
estate at 85 Doolittle Road, Stamford, and the [plain-
tiff’s] remainder interest therein. The [plaintiff’s] expert,
Armand V. Liguori, testified that the value of the real
property and improvements as of May 14, 2013 was
$1,280,000, which opinion was supported by a written
appraisal . . . . For his part, the [defendant’s] expert,
James J. Tooher, testified that as of that date, the value
of the property was $1,325,000, which was also sup-
ported by a written appraisal . . . . While the court
found both witnesses credible on this point, it finds
that the more reliable number is the lower number.
However, in arriving at the value of the [plaintiff’s]
remainder interest, the experts varied in a range from
$513,000 ([plaintiff’s] expert) to $634,000 ([defendant’s]
expert). While the court finds . . . the methodology
employed by [Liguori] to be more reliable . . . it finds
that he relied upon an article published in 1998 and
applied a 10 percent discount [rate], which the court
finds is not reflective of the current circumstances.
‘‘The court heard the matter over the course of five
days, including final argument, and the evidence closed
on August 28, 2013. However, upon further consider-
ation, citing the case of Mensah v. Mensah2 [145 Conn.
App. 644, 75 A.3d 92 (2013)] . . . the court reopened
the evidence on November 1, 2013, in order to allow
the parties the opportunity to offer additional evidence
regarding the discount rate to be applied in the valuation
of the [plaintiff’s] remainder interest. . . .3 A further
hearing was held on March 14, 2014, where the court
heard the testimony of the [defendant’s] expert, William
Murray, as well as briefly the [plaintiff’s business attor-
ney, Jonathan Hoffman,] and her real estate appraiser
. . . Liguori. Mr. Murray testified at length and submit-
ted a written report . . . . The witness testified cate-
gorically that a 10 percent discount rate was not
realistic. Basing his opinion upon a life expectancy of
11.1 years, an average rental in Stamford for a compara-
ble property, and a combination of historical [Real
Estate Investment Trust] performance return data and
the applicable federal rate, he testified that the appro-
priate discount rate should be 3.37 percent. Applying
that to the market value of the property, results in a
value of the remainder [interest] of $1,103,806.’’ (Cita-
tions omitted; emphasis in original; footnotes added.)
Before it issued its final orders, the court addressed
certain questions of law. First, it determined that the
plaintiff’s remainder interest in the property was part
of the marital estate as it was ‘‘acquired while the parties
were husband and wife’’ and ‘‘[was] the sole significant
asset in either party’s name at the termination of a
twenty-five year marriage.’’4 The court noted that, ‘‘[i]n
family cases . . . it is the function of the court to divide
the marital estate, irrespective of who holds title.’’ The
court cited General Statutes § 46b-81 (a), which states
in relevant part that ‘‘[a]t the time of entering a decree
annulling or dissolving a marriage or for legal separation
. . . the Superior Court may assign to either spouse all
or any part of the estate of the other . . . .’’ Further,
the court concluded that the plaintiff ‘‘has a vested
interest in the real property at 85 Doolittle Road . . .
[and] this interest is capable of valuation at this time.’’
Next, the court discussed the enforceability of the
agreement dated November 9, 2005, between the parties
and Sandolo. Although it expressed concerns as to the
agreement’s legal viability, the court determined that it
did not need to abrogate the agreement, deciding
instead to use ‘‘alternate means to achieve an equitable
resolution of this family dispute.’’ The court concluded
that, regardless of the terms of the agreement, ‘‘[s]aying
that [the plaintiff’s remainder interest is not part of the
marital estate] does not make it so.’’
In issuing its final orders, however, the court found
that ‘‘the portion of the agreement entered into on
November 9, 2005 . . . in particular paragraph 3
thereof, relating to the [defendant’s] waiver of marital
and other legal rights is void as against public policy
and is unenforceable against the [defendant], and is,
moreover, not binding upon a court in exercising its
statutory duty to subsequently dissolve the parties’ mar-
riage, award alimony, and provide for an equitable dis-
tribution of assets and other relief; and that as to the
remainder of the agreement, there was sufficient mutual
consideration to enforce same as between . . . San-
dolo and [the plaintiff].’’
The court determined that its equitable powers gave
it authority to consider all the circumstances that may
be appropriate for a just and equitable resolution of the
marital dispute and that, although neither party sought
periodic alimony, an award of lump sum alimony to the
defendant was appropriate under all the circum-
stances.5 In making this finding, the court took into
account the statutory factors in § 46b-81, and further
found that the plaintiff’s vested interest in the property
‘‘will inure to the benefit of her long-term financial
security . . . and that [an] award of lump sum alimony
[to the defendant would] give [him a] present opportu-
nity to provide for his long-term financial security.’’ The
court gave weight to the length of the marriage, the
source of the [plaintiff’s] principal asset, her remainder
interest in the property, the limited education of both
parties, their occupations and vocational skills, their
present assets and the likelihood that neither of them
would acquire significant assets in the future, and the
fact that neither party made any other provision for
retirement. The court also found that ‘‘throughout the
marriage, until their separation, both parties . . .
made significant contributions to the acquisition, main-
tenance, and preservation of the family assets, including
. . . improvements to . . . 85 Doolittle Road . . . .’’
The court permitted the plaintiff to retain her interest
in the property, subject to the existing indebtedness
and the life estate of Sandolo. It ordered the plaintiff
to pay the defendant, ‘‘as and for lump sum alimony,
the sum of $225,000, payable as follows: On or before
July 1, 2014, the [plaintiff] shall pay to the [defendant]
the sum [of] $22,500, and a like sum annually on each
subsequent anniversary of the first payment, until paid
in full. The foregoing notwithstanding, nothing shall
prevent the payment in full or in part at any earlier
time, and in the event of the death of . . . Sandolo,
the sale, refinance, or other transfer of the property,
or any interest therein, whichever shall sooner occur,
the then outstanding balance shall be due and payable
in full.’’ The court also stated, ‘‘It is the intention of
this court that this obligation shall be nonmodifiable,
survive the death of either party and the remarriage
or cohabitation of the [defendant], and that it be non-
taxable to [defendant] and nondeductible by the [plain-
tiff].’’6 (Emphasis in original.)
The plaintiff filed a motion to reargue on April 9,
2014, which was denied by the court on May 1, 2014.7
On June 20, 2014, the court filed a correction to its
decision, clarifying that it was the intention of the court
that the lump sum alimony obligation be nonmodifiable,
that it survive both the death of either party and the
remarriage or cohabitation of the defendant, and that
it be nontaxable to the defendant and nondeductible
by the plaintiff. The plaintiff then filed the present
appeal, and also filed a motion to articulate the court’s
decision as to four issues. The court addressed each
request for articulation in turn. It first found that during
their occupancy of the property, the defendant and the
plaintiff ‘‘made actual, tangible contributions to the
property, including full or partial payment of the mort-
gage for at least two years, installation of bathroom tile
and fixtures, installation of garage doors, construction
of a cinder block retaining wall . . . use of a machine
to break up stone in [the] backyard, and raising of the
level of the same.’’
The court further articulated that it did not intend
that its decision abrogate the agreement of November
9, 2005, because rather than awarding the defendant a
share of the property, which would likely trigger further
acrimonious litigation, it awarded the entire interest in
the property to the plaintiff.8 That being the case, when
it came time to consider an award of alimony, the court
took into account the statutory factors set forth in Gen-
eral Statutes § 46b-82, including the award, if any, the
court may make pursuant to § 46b-81.9 Additional facts
and procedural history will be set forth as necessary.
We begin our analysis by setting forth the relevant
standard of review and legal principles. ‘‘An appellate
court will not disturb a trial court’s orders in domestic
relations cases unless the court has abused its discre-
tion or it is found that it could not reasonably conclude
as it did, based on the facts presented. . . . 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. . . . Thus, unless the trial court applied the
wrong standard of law, its decision is accorded great
deference because the trial court is in an advantageous
position to assess the personal factors so significant in
domestic relations cases.
‘‘Appellate review of a trial court’s findings of fact is
governed by the clearly erroneous standard of review.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . Our deferential standard of review, however, does
not extend to the court’s interpretation of and applica-
tion of the law to the facts. It is axiomatic that a matter
of law is entitled to plenary review on appeal.’’ (Internal
quotation marks omitted.) Fulton v. Fulton, 156 Conn.
App. 739, 745, 116 A.3d 311 (2015).
‘‘[T]rial courts are empowered to deal broadly with
property and its equitable division incident to dissolu-
tion proceedings.’’ (Internal quotation marks omitted.)
Jewett v. Jewett, 265 Conn. 669, 682, 830 A.2d 193 (2003).
‘‘[T]he court is required by § 46b-81 to consider the
estate of each of the parties. Implicit in this requirement
is the need to consider the economic value of the par-
ties’ estates. . . . In assessing the value of the assets
that comprise the marital estate, the trial court func-
tions as the trier of fact. . . . The trial court has the
right to accept so much of the testimony . . . as [it]
finds applicable . . . .’’ (Citation omitted; internal quo-
tation marks omitted.) McRae v. McRae, 129 Conn. App.
171, 183–84, 20 A.3d 1255 (2011). ‘‘[It] arrives at [its]
own conclusions by weighing the opinions of the
appraisers, the claims of the parties, and [its] own gen-
eral knowledge of the elements going to establish value,
and then employs the most appropriate method of
determining valuation.’’ (Internal quotation marks omit-
ted.) Turgeon v. Turgeon, 190 Conn. 269, 274, 460 A.2d
1260 (1983). In selecting and applying an appropriate
valuation method, the trial court has considerable dis-
cretion. Krafick v. Krafick, 234 Conn. 783, 799–800, 663
A.2d 365 (1995). Generally, an appellate court will not
overturn a trial court’s division of marital property
unless it ‘‘misapplies, overlooks, or gives a wrong or
improper effect to any test or consideration which it
was [its] duty to regard. . . . As with other questions
of fact, unless the determination by the trial court is
clearly erroneous, it must stand.’’ (Citation omitted;
internal quotation marks omitted.) Bornemann v.
Bornemann, 245 Conn. 508, 532, 752 A.2d 978 (1998).
I
We first address the plaintiff’s claim that the court
erred in failing to enforce an agreement between the
parties and the plaintiff’s mother, Sandolo, in which
Sandolo transferred her property to the plaintiff and
retained a life estate in it for herself, conditioned on
the defendant waiving any claims to the property.
The following additional facts are relevant to this
claim. On November 9, 2005, the parties and Sandolo
entered into an agreement to effectuate the transfer of
a remainder interest in the property from Sandolo to
the plaintiff. In this agreement, Sandolo is referred to
as the ‘‘[g]rantor,’’ and the plaintiff and the defendant
are referred to as the ‘‘[g]rantee’’ and ‘‘the [g]rantee’s
[h]usband,’’ respectively. Paragraph 1 of the agreement
states, ‘‘In consideration of, and reliance upon, the
[g]rantee’s Husband’s statement set forth in paragraph
3 hereof, the [g]rantor hereby agrees to gift and convey,
and the [g]rantee hereby agrees to accept, [the property]
. . . subject to the reservation by the [g]rantor of a life
estate in the [p]remises.’’
Paragraph 3 of the agreement constitutes the defen-
dant’s claimed waiver. It reads: ‘‘In consideration of the
[g]rantor’s decision to gift and convey the [p]remises,
the [g]rantee’s [h]usband hereby relinquishes all right,
title and interest which he may have in and to the
[p]remises at the time of the conveyance or at any time
in the future. The [g]rantee’s [h]usband further declares
that the [p]remises shall at no time be considered prop-
erty of he and his wife’s marriage, whether or not he
and his wife’s marriage is at any time dissolved, and
that, if the [g]rantee predeceases him, he hereby waives
his right to elect the statutory share provided in Con-
necticut General Statute[s] [§] 45a-436 to obtain an
interest in the [p]remises.’’ (Emphasis added.)
Paragraph 4 states, ‘‘The [g]rantee agrees to provide
nutritional, health and other care-giving services to the
[g]rantor during the [g]rantor and [g]rantee’s mutual
occupancy of the premises.’’ The agreement does not
require that Sandolo permit the plaintiff to reside in the
home during the tenure of her life estate, nor does it
require the plaintiff to reside in the home in exchange
for the gift of the remainder interest.
In addressing the issue of whether the agreement
was not enforceable on the ground that it violates public
policy, the court devoted considerable discussion to
why enforcement of the defendant’s waiver in the
agreement served ‘‘no good societal interest . . . .’’
The court opined that any attempt to limit the marital
estate by a third party while the marriage is intact
should be void, that if the agreement was intended to
be a postnuptial agreement, it might not survive the
special scrutiny to be applied to such agreements, and
that, with respect to the circumstances surrounding its
execution, the agreement failed ‘‘the test of even the
most basic right to counsel, if not a want of consid-
eration.’’
The court treated the agreement as a postnuptial
agreement. In so doing, it utilized the type of special
scrutiny that applies to determine the enforceability of
postnuptial agreements. With respect to the judicial
scrutiny to which postnuptial agreements are subject,
our Supreme Court has stated: ‘‘Because of the nature
of the marital relationship, the spouses to a postnuptial
agreement may not be as cautious in contracting with
one another as they would be with prospective spouses,
and they are certainly less cautious than they would
be with an ordinary contracting party. With lessened
caution comes greater potential for one spouse to take
advantage of the other. This leads us to conclude that
postnuptial agreements require stricter scrutiny than
prenuptial agreements. In applying special scrutiny, a
court may enforce a postnuptial agreement only if it
complies with applicable contract principles, and the
terms of the agreement are both fair and equitable at
the time of execution and not unconscionable at the
time of dissolution.
‘‘We further hold that the terms of a postnuptial
agreement are fair and equitable at the time of execution
if the agreement is made voluntarily, and without any
undue influence, fraud, coercion, duress or similar
defect. Moreover, each spouse must be given full, fair
and reasonable disclosure of the amount, character and
value of property . . . and all of the financial obliga-
tions and income of the other spouse. This mandatory
disclosure requirement is a result of the deeply personal
marital relationship.’’ (Footnote omitted.) Bedrick v.
Bedrick, 300 Conn. 691, 703–704, 17 A.3d 17 (2011).
Whether each spouse had a reasonable opportunity to
confer with independent counsel is also a relevant cir-
cumstance to consider. Id., 704–705 n.6.
In an examination of the parties’ intentions with
respect to the agreement, the court went beyond the
four corners of the agreement and considered extrinsic
evidence as to the circumstances of its execution, as
required by Bedrick.
The court found that, after the death of her husband,
Sandolo wanted to remain in her own home, however,
she did not wish to live there alone. Accordingly, she
asked the plaintiff and the defendant if they would like
to live with her again. Sandolo indicated that she would
make some substantial improvements to the home if
they would move back in with her. Both parties agreed
to do so. Sandolo called her family attorney to draft
certain documents. On November 9, 2005, the attorney
brought the agreement to Sandolo’s home. The court
found that Sandolo’s primary goal was to be able to
live in her home for the rest of her life, where her
daughter would provide lifetime care, and that the plain-
tiff’s primary interest was to obtain ultimate, unencum-
bered title to the property, in return for providing long-
term care to Sandolo. The court found: ‘‘[B]oth [San-
dolo] and [the plaintiff] have had the benefit of the
bargain. A question for another time is whether or not
[Sandolo] could undo the transfer, should the court
void the [defendant’s] waiver, or, in the alternative,
grant him an interest in the property. The waiver by
the [defendant] of his legal rights was secondary to that
primary bargain, and while it may have been part of
[Sandolo’s] estate plan, it was, nevertheless, mean-spir-
ited, or shortsighted at best, and a likely source of
friction between the spouses at some point. In viewing
the agreement and the circumstances surrounding its
execution, it fails the test of even the most basic right
to counsel, if not a want of consideration. The parties
were already living under the roof at 85 Doolittle Road,
and there is no evidence that they would be evicted in
the absence of the [defendant’s] signature, only that
[Sandolo] would not make the transfer to the [plaintiff].
Moreover, although this agreement does not fall within
the strict definition of a postnuptial agreement, never-
theless, it was executed during the marriage of the
parties. As such, public policy would seem to dictate
that it should be viewed with special scrutiny. . . .
Under all the circumstances, no good societal interest
is served by the enforcement of this provision.
‘‘The foregoing notwithstanding, this court believes
that the protracted, contentious, and acrimonious litiga-
tion that would very likely follow the judicial abrogation
of the agreement in question, would do more harm to
all the parties than good. Accordingly, the court has
taken an alternate means to achieve an equitable resolu-
tion of this family dispute.’’10 (Citation omitted; internal
quotation marks omitted.)
Although the court expressly declined to abrogate
the agreement, it failed to give effect to that portion of
paragraph 3 of the agreement in which the defendant
declared that in consideration of Sandolo’s gift to the
plaintiff, ‘‘the [p]remises shall at no time be considered
property of he and his wife’s marriage, whether or not
he and his wife’s marriage is at any time dissolved
. . . .’’ When it decided that the remainder interest
deeded to the plaintiff as a result of the agreement was
‘‘a present, vested interest . . . capable of valuation’’
and a ‘‘part of the marital estate for purposes of equita-
ble distribution,’’ the court did abrogate the agreement.
Thus, although the court considered the use of its
equitable powers under §§ 46b-81 and 46b-82 as an alter-
native to deciding whether the agreement was enforce-
able, in treating the plaintiff’s remainder interest as part
of the marital estate, the court declined to enforce the
promise made by the defendant to Sandolo11 in para-
graph 3 of the agreement, which was the express consid-
eration for Sandolo’s transfer under paragraph 1.12 After
considering that the agreement the court gave the plain-
tiff an interest in the property with a value that should
be considered part of the marital estate, the court deter-
mined that a just and equitable resolution of the dispute
over a division of the property was to leave the remain-
der interest vested in the plaintiff and to award the
defendant lump sum alimony in order to provide both
parties with some future financial security. The court
indicated that in arriving at its decision regarding the
award of lump sum alimony and the division of marital
property, the court had taken into consideration the
source of the plaintiff’s principal asset, the remainder
interest in the property, and the present assets of each
party. The court also treated the plaintiff’s remainder
interest as security for the defendant’s lump sum ali-
mony by ordering that, ‘‘in the event of the death of
[Sandolo], the sale, refinance, or other transfer of the
property, or any interest therein, whichever shall sooner
occur, the then outstanding balance shall be due and
payable in full.’’13
We agree with the plaintiff that the court erred when
it declared that it would not decide the issue of the
agreement’s enforceability, but then issued a decision
that resolved that issue by failing to enforce a portion
of the agreement. In this respect, the court’s decision
is internally inconsistent. We also conclude that in
refusing on public policy grounds to enforce the
agreement in its entirety, the court improperly evalu-
ated the agreement by applying the special scrutiny
standard applicable to postnuptial agreements because
the agreement at issue is not a postnuptial agreement.
A postnuptial agreement is an ‘‘agreement entered
into during marriage to define each spouse’s property
rights in the event of death or divorce. The term com-
monly refers to an agreement between spouses during
the marriage at a time when separation or divorce is
not imminent.’’ Black’s Law Dictionary (9th Ed. 2009);
see also Bedrick v. Bedrick, supra, 300 Conn. 702(observing that postnuptial agreements are entered into
between spouses who share relationship of mutual con-
fidence and trust).
The agreement in question, however, is not an
agreement between the plaintiff and the defendant. It
includes no direct promises between the plaintiff and
the defendant. It refers to Sandolo as the grantor, to
the plaintiff as the grantee and to the defendant as the
grantee’s husband. The plaintiff’s remainder interest in
the property was not part of the marital estate prior to
the execution and filing of the quitclaim deed contem-
plated in the agreement, which was delivered and
recorded after the agreement was signed. On its face,
the agreement unambiguously expresses that the
waiver of the defendant’s rights is the consideration
for the promise from Sandolo to transfer, as a gift, a
remainder interest beneficial to the plaintiff, who was
still the defendant’s wife at the time the agreement
was executed.
The agreement should have been analyzed in accor-
dance with established principles of contract interpreta-
tion. ‘‘[A] contract must be construed to effectuate the
intent of the parties, which is determined from the lan-
guage used interpreted in the light of the situation of
the parties and the circumstances connected with the
transaction. . . . [T]he intent of the parties is to be
ascertained 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. A court will not
torture words to import ambiguity where the ordinary
meaning leaves no room for ambiguity . . . . Similarly,
any ambiguity in a contract must emanate from the
language used in the contract rather than from one
party’s subjective perception of the terms. . . .
‘‘[W]here there is definitive contract language, the
determination of what the parties intended by their
contractual commitments is a question of law. . . .
When only one interpretation of a contract is possible,
the court need not look outside the four corners of the
contract.’’ (Citations omitted; internal quotation marks
omitted.) Poole v. Waterbury, 266 Conn. 68, 87–89, 831
A.2d 211 (2003).
In view of the language in paragraph 1, which
expressly stated that the consideration for Sandolo’s
transfer was derived only from the defendant’s waiver
in paragraph 3, the agreement should have been con-
strued as a third party beneficiary contract. In exchange
for the defendant’s promise of consideration, which
was his waiver as contained in paragraph 3, Sandolo
was induced to promise to transfer part of her interest
in the property as a ‘‘gift’’ to the plaintiff. Although the
court found that the primary consideration for San-
dolo’s execution of the agreement was the language
contained in paragraph 4 between Sandolo and the
plaintiff, in which the plaintiff promises to care for
Sandolo while they mutually occupied the premises,
that portion of the agreement does not even guarantee
the plaintiff or the defendant a definite right to occupy
the premises with Sandolo until her death, nor does
the plaintiff make any promise to occupy the premises
until the death of Sandolo. As a life tenant, Sandolo
did not waive her right to evict the plaintiff and the
defendant, and the plaintiff did not agree never to vacate
the premises and live elsewhere during the period of
the life tenancy. The ‘‘promise’’ of caregiving while the
plaintiff occupied the premises, as expressed in the
contract, was an illusory one, easily avoided by Sandolo
or the plaintiff. Thus, it was a token promise, and not
the bargained for promise in the agreement, especially
in light of the clear expressions in the agreement, on
the part of Sandolo, that the conveyance to the plaintiff
was intended as ‘‘gift’’ from Sandolo to the plaintiff.14
We observe that, in its most basic terms, a ‘‘gift’’ is ‘‘the
transfer of property without consideration.’’ (Internal
quotation marks omitted.) In re Probate Appeal of
Mikoshi, 124 Conn. App. 536, 540, 5 A.3d 569 (2010).
Thus, it is more appropriate to consider the plaintiff’s
claim for enforceability of the agreement as a claim by
a third party beneficiary, or a donee beneficiary, to
enforce the benefit Sandolo and the defendant agreed
would be conferred on the plaintiff—the gift of the
remainder interest. Her right to enforce the agreement
is not as an obligee. Her right was created by the prom-
ise between Sandolo and the defendant. It is well estab-
lished in our law that ‘‘[a] third party beneficiary may
enforce a contractual obligation without being in privity
with the actual parties to the contract. . . . Therefore,
a third party beneficiary who is not a named obligee
in a given contract may sue the obligor for breach.’’
(Footnote omitted; internal quotation marks omitted.)
Wilcox v. Webster Ins., Inc., 294 Conn. 206, 217, 982
A.2d 1053 (2009).
Having recognized the plaintiff’s right to seek
enforcement of the contract even though it is not a
postnuptial agreement wherein the defendant and the
plaintiff made any direct promises to one another, the
determination of whether it is enforceable is subject to
ordinary contract principles, not the special scrutiny
applicable to postnuptial contracts required under
Bedrick v. Bedrick, supra, 300 Conn. 703–704.
In light of the court’s observations, among the issues
it may choose to consider on remand is whether the
contract should be declared void as against public pol-
icy on the ground that it is an agreement between a
spouse and a third party that was intended at the time
it was made to promote, facilitate or provide an incen-
tive for divorce.15 See Gould v. Gould, 261 App. Div. 733,
27 N.Y.S.2d 54 (written guarantee agreement whereby
defendant guaranteed payment of monthly sums upon
condition that plaintiff promptly procure a divorce from
her husband was void as against public policy), leave
to appeal denied, 262 App. Div. 833, 29 N.Y.S.2d 503(1941); 7 R. Lord, Williston on Contracts (4th Ed. 2010)
§ 16:19, pp. 531–49 (discussing public policy arguments
concerning agreements promoting or facilitating
divorce). Whether a contract is against public policy is
a question of law dependent on the circumstances of
the particular case. ‘‘[A]s a general matter, the courts
do not apply the rule of unenforceability in as absolute
a fashion as the traditional statement of the rule [that
contracts violative of public policy are unenforceable]
might indicate. The legal effect of contracts contrary
to public policy varies with the character of the factors
that cause them to be against public policy. In the crimi-
nal law, a felony is worse than a misdemeanor and
the penalties vary accordingly. So it is with a contract
violative of public policy. There are degrees of enforce-
ability and thus a variety of techniques used by courts
that fall short of complete enforceability but also
exceed complete unenforceability.’’ 15 G. Giesel, Corbin
on Contracts (J. Perillo ed., Rev. Ed. 2003) § 79.1, p.
5.16 When a promise or other term of an agreement is
unenforceable on grounds of a public policy that is not
legislatively declared, the court may determine if the
interest in its enforcement is clearly outweighed in the
circumstances by a public policy against the enforce-
ment of its terms. See 2 Restatement (Second), Con-
tracts § 178, p. 6 (1981). Courts have enforced contracts
involving performances contrary to public policy when
they have determined that enforcement under the par-
ticular circumstances is more just. See 15 G. Giesel,
supra, § 89.1, p. 614.
‘‘[A] decision as to enforceability is reached only after
a careful balancing, in the light of all the circumstances,
of the interest in the enforcement of the particular
promise against the policy against the enforcement of
such terms.’’ 2 Restatement (Second), supra, § 178,
comment (b), p. 8. ‘‘In some cases the contravention
of public policy is so grave, as when an agreement
involves a serious crime or tort, that unenforceability
is plain. In other cases the contravention is so trivial
that it plainly does not preclude enforcement.’’ Id. Sec-
tion 178 of the Restatement (Second) of Contracts pro-
vides in relevant part: ‘‘(2) In weighing the interest in
the enforcement of a term, account is taken of (a) the
parties’ justified expectations, (b) any forfeiture that
would result if enforcement were denied, and (c) any
special public interest in the enforcement of the particu-
lar term. (3) In weighing a public policy against enforce-
ment of a term, account is taken of (a) the strength
of that policy as manifested by legislation or judicial
decisions, (b) the likelihood that a refusal to enforce
the term will further that policy, (c) the seriousness of
any misconduct involved and the extent to which it was
deliberate, and (d) the directness of the connection
between that misconduct and the term.’’ Id., § 178, pp.
6–7. On remand, prior to reconsidering the financial
orders relative to the dissolution, the court should con-
sider the agreement as a third party beneficiary contract
between the defendant and Sandolo, make any factual
inquiries necessary for that inquiry, and determine the
extent of its enforceability accordingly.17
II
We next address the plaintiff’s claim that the court
committed error when it reopened the evidence, sua
sponte, in order to allow the parties the opportunity to
offer additional evidence regarding the valuation of the
plaintiff’s remainder interest in property that she
owned, but in which Sandolo retained a life estate.
Although we are remanding this case to the trial court
for further proceedings related to the enforceability of
the agreement between the parties and Sandolo, we
will address the present claim related to the issue of
the valuation of the plaintiff’s remainder interest in the
property because the types of issues involved herein
may arise on remand. See Edmond v. Foisey, 111 Conn.
App. 760, 773 n.14, 961 A.2d 441 (2008) (reviewing court
may resolve claims that are not necessary for resolution
of appeal but may arise during proceedings on remand).
The following additional facts are relevant to this
claim. During the trial, the plaintiff called a real estate
appraiser, Liguori, as an expert witness to testify as to
the value of the property and the value of the plaintiff’s
remainder interest in it. The defendant called another
real estate appraiser, Tooher, who testified to the same
issues. Each of these appraisers employed a different
methodology in placing a value on the remainder inter-
est. On August 14, 2013, after hearing closing arguments,
the court indicated to the parties that it had some seri-
ous reservations about the imperfect approach that the
two real estate appraisers called by each side had taken
in placing a value on the plaintiff’s remainder interest.
Specifically, the court stated, ‘‘I believe that . . . Ligu-
ori’s approach, you know, the format that he used, is
more consistent with arriving at a more accurate residu-
ary value of [the] residuary estate.
‘‘So, having said that, I have some serious reserva-
tions. And I think I articulated them, and I’ll say it again,
with regard to the discount rate. And he did say on the
[witness] stand that he was aware of the fact that a
high discount rate would inure toward the benefit of
[the plaintiff]. . . .
‘‘So, if his formula is okay, but the variables that he
inserts in the formula are not correct, or, you know,
they’re one way or the other, that can skew the ulti-
mate result.
‘‘So, supposing I agree with you? And I agree that
. . . Tooher’s approach was too simplistic. But I agree
with you that your expert, [Liguori], his approach was
correct. But I don’t believe that he used the correct
discount rate. . . . What do I do as a judge?’’
The court went on to indicate that it was aware of
a case in New Haven, without specifying the case name,
where the judge did not accept the experts’ testimony
and instead ‘‘went to the federal tables . . . and came
up with a number. . . .
‘‘And I, you know, [if] memory serves me, there is a
floating table, [a] floating rate that the Internal Revenue
[Service (IRS)] of the Department of Treasury comes
out with on a regular basis. Either on a weekly or on
a monthly basis that sets the appropriate discount rate
[that] could be utilized in the event of estates and trusts
and [whatnot].
‘‘So, I just throw that out to you, because, you know,
the case law is very, very clear. The court does not
have to believe either expert. . . .
‘‘But I believe that the case law says that the court
must find a reasonable, rational basis and articulate the
basis for its decision.
‘‘And anyway, that’s one of the dilemmas that I have.’’
The court also referred the parties, again, to the cau-
tionary lesson of Mensah v. Mensah, supra, 145 Conn.
App. 644. See footnote 3 of this opinion.
On November 1, 2013, after both parties had rested
and presented their closing arguments to the court, the
court asked the parties to return to court and engaged
them in a discussion on the record concerning what
the court considered a ‘‘nagging problem’’ with respect
to finalizing its decision. The court reiterated that it
had a grave problem with the discount rate of 10 percent
used by Liguori, the plaintiff’s expert, and that it had
consulted the IRS website and determined that its dis-
count rate for May, 2013, was ‘‘something on the order
of a shade under 2 percent, and that’s a far cry from
the 10 percent.’’
The court then stated, ‘‘I would like to give both of
you the opportunity to come back . . . [and] plow the
same ground . . . but, I mean, I would strongly suggest
that both of you guys either get together and agree [on]
a valuation for the remainder interest . . . or you both
can go back to your experts and come up with a method-
ology, I mean, with a remainder [value]. . . . And . . .
I’m opening the evidence for that, and you guys will
have an opportunity to make your case with regard to
the discount rate and the value of the remainder
interest.’’
On that same date, both counsel agreed to report back
to the court in two weeks. Neither counsel objected to
the reopening of the evidence. The following colloquy
then occurred between the court and the plaintiff’s
counsel:
‘‘[The Plaintiff’s Counsel]: Just to be clear, we’re,
essentially, back on trial because you’re reopening
the evidence?
‘‘The Court: Absolutely. But only for this limited
purpose.
‘‘[The Plaintiff’s Counsel]: I understand. For timing
purposes.’’
On March 11, 2014, the plaintiff filed a motion to
reopen evidence, seeking permission to present addi-
tional testimony from her business attorney, Hoffman,
regarding the further deterioration of her financial con-
dition since the date of the last hearing. On March
14, 2014, the court heard additional evidence, which
included not only new expert testimony from Murray,
a certified public accountant called by the defendant
who was extensively cross-examined by the plaintiff,
but also additional testimony from the plaintiff’s
appraisal expert, Liguori, to rebut Murray’s testimony.
Further, Hoffman testified in support of the plaintiff’s
claim that her financial condition had worsened since
the date that the court had last heard evidence in
August, 2013. Therefore, at the plaintiff’s request, the
court expanded the purpose of the reopening of the
evidence.
We review a trial court’s decision to reopen evidence
under the abuse of discretion standard. ‘‘In any ordinary
situation if a trial court feels that, by inadvertence or
mistake, there has been a failure to introduce available
evidence upon a material issue in the case of such a
nature that in its absence there is a serious danger of
a miscarriage of justice, it may properly permit that
evidence to be introduced at any time before the case
has been decided. . . . Whether or not a trial court
will permit further evidence to be offered after the close
of testimony in a case is a matter resting in the sound
discretion of the court.’’ (Citation omitted; internal quo-
tation marks omitted.) Wood v. Bridgeport, 216 Conn.
604, 606, 583 A.2d 124 (1990). ‘‘In determining whether
there has been an abuse of discretion, every reasonable
presumption should be given in favor of the correctness
of the court’s ruling. . . . Reversal is required only
[when] an abuse of discretion is manifest or [when]
injustice appears to have been done. (Internal quotation
marks omitted.) Patino v. Birken Mfg. Co., 304 Conn.
679, 698, 41 A.3d 1013 (2012); see also Weiss v. Smuld-
ers, 313 Conn. 227, 261–62, 96 A.3d 1175 (2014) (no
error for court to refuse to reopen evidence for hearing
on damages under abuse of discretion standard when
trial court already had ordered, sua sponte, further evi-
dentiary proceedings after close of evidence, and party
offered ample opportunity to obtain and present
evidence).
In the present case, the court indicated its concern
about the holding in Mensah v. Mensah, supra, 145
Conn. App. 644, in which the judgment of the trial court
was reversed after it had indicated that it did not have
sufficient evidence of the parties’ financial circum-
stances, had denied a continuance to secure further
documentation, and had issued financial orders as part
of its dissolution judgment. See id., 653–54. In this case,
having expressed reservations about the manner in
which the parties’ experts had calculated the value of
the plaintiff’s remainder interest, the only significant
asset in the parties’ marital estate that was in dispute,
it would have been injudicious of the court to have
proceeded to decide on financial orders without asking
for additional evidence after having explicitly stated,
on several occasions, that it did not view the valuation
evidence as persuasive evidence.18 Proceeding in this
manner only would have led to a claim of injustice by
at least one of the parties and in all likelihood, in light
of Mensah, reversal of the judgment on appeal.
This is not a situation where either party had moved
for a directed verdict or a dismissal that was based
upon the other party’s failure to present a prima facie
case, whereafter the court reopened the evidence to
permit the nonmoving party to cure a deficiency called
to the court’s attention by the other party’s motion. See
State v. Allen, 205 Conn. 370, 383–85, 533 A.2d 559(1987) (improper for motion for acquittal at close of
state’s evidence to result in opening of evidence,
affording state another opportunity to furnish evidence
essential to prove element of crime shown by defendant
to have been omitted from its case-in-chief). Both par-
ties had finished presenting their cases in full and had
rested before the court reopened the evidence. To
address the court’s concern with respect to an issue of
valuation for which neither party presented the court
with persuasive evidence to guide it, each party was
permitted ample opportunity, in fact, over four months,
to develop a persuasive response to the court’s concern,
and to address it with further evidence and argument.
In addition, the court permitted the plaintiff, despite
having opened the evidence for the limited purpose of
hearing further testimony on the value of the remainder
interest, to present additional evidence as to changes in
the financial circumstances of the plaintiff’s restaurant
business since August, 2013, the date that the trial had
initially concluded. Although the defendant might have
had cause to complain about the expansion of the lim-
ited purpose of the March 14, 2014 hearing, we perceive
no injustice or substantial prejudice to the plaintiff in
the manner in which the court conducted that hearing.
Finally, a review of the record, including the plaintiff’s
response to the court’s proposal to reopen the evidence,
reveals that the plaintiff acquiesced in the court’s con-
ducting of additional proceedings on March 14, 2014.
First, the plaintiff failed to express any objection to the
court’s proposal to reopen the evidence. At no point
did the plaintiff complain, as she does now on appeal,
that the court had impermissibly ‘‘interjected itself into
the debate to invite testimony to comport with informa-
tion it had gleaned from its own Internet research on
the IRS website, which it performed after the close of
evidence,’’19 that the court had ‘‘no basis in the record
[for disbelieving] both [Liguori and Tooher],’’ or that it
was ‘‘unfair to throw a completely different matrix at
the parties after they had already invested so much in
the trial strategy and approach that they each freely
chose with the assistance of counsel.’’ (Emphasis
omitted.)
By participating in the reopened portion of the pro-
ceedings by not only cross-examining Murray, the
defendant’s new expert witness, but also by recalling
as a witness, Liguori, her expert appraiser; moving for
permission to call a new witness, Hoffman, to testify
about a different subject; and electing to present and
to rely on new facts that were not previously in evi-
dence, as testified to by both Liguori and Hoffman,
the plaintiff fully acceded to the court’s exercise of its
authority to reopen the hearing. ‘‘If [a party] has full
knowledge of improper conduct (or what he perceives
to be improper procedure) he cannot remain silent,
hoping for a favorable ruling, and then be heard to
complain when the order is unsatisfactory.’’ Walsh v.
Walsh, 190 Conn. 126, 132, 459 A.2d 515 (1983); see
generally 1 B. Holden & J. Daly, Connecticut Evidence
(1988) § 12, pp. 72–89 (discussing principles of argu-
ment in context of order of testimony). ‘‘Disappointed
litigants must not be encouraged to use an appeal as
an opportunity to raise a claim that assaults the integrity
of the trial court at its most fundamental level without
having given the court, and the opposing party, an
opportunity to respond. In the absence of an objection
and an adequate record in the trial court, this court
should not countenance such claims by reviewing them
unless the record demonstrates . . . that a reasonable
person would conclude that the proceeding fundamen-
tally was unfair.’’ (Footnote omitted.) Wiegand v. Wie-
gand, 129 Conn. App. 526, 543–44, 21 A.3d 489 (2011)
(Lavine, J., concurring). We repeatedly have expressed
our disfavor ‘‘with the failure, whether because of a
mistake of law, inattention or design, to object to errors
occurring in the course of a trial until it is too late for
them to be corrected, and thereafter, if the outcome of
the trial proves unsatisfactory, with the assignment to
such errors as grounds of appeal.’’ (Internal quotation
marks omitted.) Jones v. Ippoliti, 52 Conn. App. 199,
206, 727 A.2d 713 (1999).
On the basis of our review of the record, we conclude
that the court acted prudently and reasonably in giving
the parties an opportunity to supplement their initial
expert presentations as to the value of the plaintiff’s
remainder interest, which it considered inadequate.
Accordingly, we conclude that the court’s reopening of
the evidence was not an abuse of its discretion.
III
The plaintiff’s third claim is that the court erred in
adopting the valuation of her remainder interest pro-
posed by one of the defendant’s experts, Murray, whom
the plaintiff maintains was not qualified to appraise the
value of that interest. The plaintiff makes two argu-
ments relating to this claim, which we shall address in
turn. As we reasoned with respect to the claim
addressed in part II of this opinion, despite the fact
that we will remand the present case to the trial court
for further proceedings related to the enforceability of
the parties’ agreement with Sandolo, we will resolve
the present claim because the issues involved herein
may arise during the proceedings on remand.
A
The plaintiff first argues that there was no basis in the
record for disbelieving the testimony of either Liguori
or Tooher, who, although utilizing different methods,
arrived at similar valuations of the plaintiff’s remainder
interest. We disagree, concluding that the court had
good reason not to adopt the expert valuation of either
Liguori or Tooher, and did not abuse its discretion in
accepting Murray’s expert opinion as to the present
value of the plaintiff’s remainder interest.
‘‘Whether a witness is qualified to testify as an expert
is a matter that rests in the sound discretion of the trial
court. . . . The role of an expert witness is to furnish
the trier with special guidance drawn from his or her
particular training, knowledge or experience.’’ (Cita-
tions omitted.) DiBella v. Widlitz, 207 Conn. 194, 202,
541 A.2d 91 (1988).
‘‘Ultimately, the determination of the value of the
property [is] a matter of opinion and depend[s] on the
considered judgment of the [trial court], taking into
account the divergent opinions expressed by the wit-
nesses and the claims advanced by the parties. . . .
Accordingly, we review the court’s findings under the
highly deferential, clearly erroneous standard of review.
[W]e do not examine the record to determine whether
the trier of fact could have reached a conclusion other
than the one reached. Rather, we focus on the conclu-
sion of the trial court, as well as the method by which
it arrived at that conclusion, to determine whether it
is legally correct and factually supported. . . . A find-
ing of fact is clearly erroneous when there is no evi-
dence to support it . . . or when although there is
evidence in the record to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.’’ (Cita-
tion omitted; internal quotation marks omitted.) Dept.
of Transportation v. Cheriha, LLC, 155 Conn. App. 181,
191–92, 112 A.3d 825 (2015).
The following additional facts and procedural history
are relevant to this claim. The plaintiff called as her
expert witness Liguori, a state licensed residential real
estate appraiser. Liguori evaluated the present fair mar-
ket value of the property and its improvements on the
basis of comparable sales, at $1,280,000. His opinion
was supported by a written appraisal report that was
admitted as evidence. Relying on a 1998 article by David
Keating, which was excerpted from his book, ‘‘Apprais-
ing Partial Interests,’’ and admitted into evidence, Ligu-
ori calculated the net present value of the plaintiff’s
remainder interest as follows: he appraised the current
fair market value of the property, applying a historical
ten year appreciation rate of residential real estate val-
ues to forecast what the fair market value of the prop-
erty would be in 12.1 years. Liguori utilized 12.1 years in
his calculations because he determined from a mortality
table that this was the probable life expectancy of San-
dolo, the holder of the life estate in the property, who
was then seventy-five years old. Liguori then deter-
mined that the future fair market value of the property
in 12.1 years would be $1,627,000, based upon an esti-
mated annual appreciation rate of 2 percent. Next,
applying Keating’s formula, Liguori calculated the net
present value of that future fair market value by utilizing
a discount rate of 10 percent, which was suggested in
a hypothetical scenario in Keating’s article. Accord-
ingly, he found the value of the plaintiff’s remainder
interest to be $513,300.20
The defendant called as his expert Tooher, a licensed
residential real estate appraiser with twenty-eight years
of experience, who had a senior real estate appraiser
certificate from the American Institute of Real Estate
Appraisers. Tooher testified that he had experience in
appraising these kinds of interests in real estate. Tooh-
er’s written appraisal report also was submitted into
evidence. Using comparable sales, Tooher found the
fair market value of the property to be $1,325,000, or
roughly 5 percent more than the value determined by
Liguori. He then applied a ‘‘remainderman multiplier’’
of .47851, which he derived by inserting the age of the
life tenant, Sandolo, into a chart he had found in a prior
appraisal file in which he had appraised a remainder
interest. Tooher multiplied the fair market value by the
multiplier and appraised the value of the remainder
interest at $634,000, about 20 percent higher than Ligu-
ori’s appraisal. Tooher indicated that he had obtained
the chart that he employed from a website on the
Internet, and that it was a ‘‘well established national
chart that accountants and attorneys use [called] the
‘Life Estate Remainder Interest Chart.’ ’’ Tooher did not,
however, identify what person or organization had pub-
lished the chart. Tooher testified that he believed that
the Keating method, although recommended by the
appraisal institute, was too subjective and that he had
avoided employing it in an effort to eliminate subjec-
tivity.
On appeal, the plaintiff first argues that the court had
no basis for rejecting the testimony of both Liguori and
Tooher. We disagree. ‘‘[T]he weight to be given the
evidence and the credibility of the witnesses are within
the sole province of the trial court.’’ Stearns v. Stearns,
4 Conn. App. 323, 327, 494 A.2d 595 (1985). ‘‘The credibil-
ity and the weight of expert testimony is judged by the
same standard, and the trial court is privileged to adopt
whatever testimony [it] reasonably believes to be credi-
ble.’’ (Internal quotation marks omitted.) United Tech-
nologies Corp. v. East Windsor, 262 Conn. 11, 26, 807
A.2d 955 (2002). ‘‘[T]he trial judge . . . is free to accept
or reject, in whole or in part, the testimony offered
by either party.’’ (Internal quotation marks omitted.)
LaBossiere v. Jones, 117 Conn. App. 211, 224, 979 A.2d
522 (2009).
‘‘[W]here the factual basis of the court’s decision is
challenged we must determine whether the facts set
out in the memorandum of decision are supported by
the evidence or whether, in light of the evidence and
. . . the whole record, those facts are clearly errone-
ous. . . . Although we give great deference to the find-
ings of the trial court because of its function to weigh
and interpret the evidence before it and to pass upon
the credibility of witnesses . . . we will not uphold a
factual determination if we are left with the definite
and firm conviction that a mistake has been made. . . .
In applying the clearly erroneous standard of review,
[a]ppellate courts do not examine the record to deter-
mine whether the trier of fact could have reached a
different conclusion. Instead, we examine the trial
court’s conclusion in order to determine whether it
was legally correct and factually supported.’’ (Citation
omitted; internal quotation marks omitted.) Wyszomie-
rski v. Siracusa, 290 Conn. 225, 237–38, 963 A.2d 943(2009). ‘‘Where the trial court rejects the testimony of
a plaintiff’s expert, there must be some basis in the
record to support the conclusion that the evidence of
the [expert witness] is unworthy of belief.’’ (Internal
quotation marks omitted.) Builders Service Corp. v.
Planning & Zoning Commission, 208 Conn. 267, 294,
545 A.2d 530 (1988).
In the present case, the court did not accept, and
need not have accepted, the expert opinion of either
Liguori or Tooher. Both of these witnesses, in the
court’s opinion, took shortcut approaches to the calcu-
lation process and were unable to explain how the
formulas they employed had actually been derived by
their appraisal industry proponents. The court com-
mented that Tooher’s approach, in which he used a
vaguely identified chart, was ‘‘too simplistic.’’
The court further expressed concerns with respect to
the high 10 percent discount rate employed by Liguori,
noting that Liguori admitted in his testimony that he
assumed that the plaintiff, in hiring him, had wanted a
lower valuation rather than a higher one. The Keating
article upon which Liguori relied, which was admitted
into evidence, explains generally that ‘‘[t]he applicable
discount rate is a function of the property type, market
conditions and the expected date of death,’’ but it does
not explain how those factors had led to his calculation
of a 10 percent discount rate. Moreover, Liguori was
unable to explain to the court’s satisfaction how to
calculate a discount rate reflective of current circum-
stances, using 2013 or 2014 market conditions. Aptly,
the court expressed concern that the ultimate valuation
would be skewed if the variables inserted into the for-
mula were not correct.
On the basis of our review of the record, it appears
that the court was willing to accept the Keating method-
ology of valuation advocated by Liguori, but not
Liquori’s application of a 10 percent discount rate. Dur-
ing Liguori’s testimony, the court indicated that it was
struggling with the use of a present value that would
appreciate 10 percent every year, referring to such a
yield as a ‘‘heck of a good investment.’’ Later, the court
indicated its conclusion that the 10 percent discount
rate was ‘‘way off. And part of it, I believe, is because
[Liguori] got his methodology, he may have got it cor-
rect, but he got it from a 1998 article, and you know,
that’s a few years ago, that’s fifteen years ago.’’
In this case, we agree, on the basis of the court’s
findings, that the opinions of Liguori and Tooher were
predicated on ‘‘uncertainties in the essential facts . . .
such as to make [their opinions] . . . without substan-
tial value.’’ (Internal quotation marks omitted.) Wyszo-
mierski v. Siracusa, supra, 290 Conn. 244. Accordingly,
we do not deem clearly erroneous the court’s rejection
of all of Tooher’s testimony and part of Liguori’s testi-
mony, which ultimately led it to reopen the evidence
to allow the parties to agree on a value or to revisit the
applicable discount rate.
B
The plaintiff’s second argument relating to her claim
that the court erred in accepting the testimony of Mur-
ray is that Murray was not qualified as a real estate
appraiser and he had not calculated the value of the
plaintiff’s remainder interest using a relevant discount
rate. We agree with the plaintiff that the court should
not have determined that one of the discount rates
proposed by Murray for insertion into the Keating for-
mula was appropriate.
The following additional facts are relevant to this
claim. At the time of his testimony, Murray was a senior
manager at the accounting firm of Blum, Shapiro & Co.,
P.C., who specialized primarily in business valuation.
He was a licensed certified public accountant, an
accredited business valuator, and an accredited senior
appraiser of the American Society of Appraisers. He
also was certified in financial forensics by the American
Institute of Certified Public Accountants. In support of
his testimony, Murray also submitted a written report,
which was admitted into evidence. Attached to Murray’s
report was a list of his specializations, which included
matrimonial disputes and estate and gift tax reporting,
as well as a list of articles that he had authored or co-
authored. Although he was not a real estate appraiser,
Murray indicated that he valued intangible assets on a
regular basis. However, although he had valued remain-
der interests in life estates, the making of such valua-
tions was not listed as one of his areas of expertise
on his firm’s website. Furthermore, Murray had never
testified about the valuation of a remainder interest in
real property until his testimony in the present case.
Prior to the commencement of Murray’s testimony,
the plaintiff objected to his qualifications and to the
relevance of his testimony, arguing that the two dis-
count rates he had chosen were related to entirely dif-
ferent investments and had never been accepted as
proper tools for determining discount rates applicable
to the appraisal of remainder interests in real property.
The court overruled the plaintiff’s objection.
As explained in his report, Murray accepted the pre-
sent fair market value of the property calculated by
Liguori, $1,280,000. He explained that the Keating
method of valuation is a common method used to calcu-
late the value of a remainder interest. Under this
method, he explained, ‘‘a future expected value of the
property is estimated based on (1) the current value of
the underlying property, and (2) a growth assumption
over the expected life of the life tenant. The estimated
future value is discounted back to present value based
on risk of the underlying property.’’ Murray then ana-
lyzed Liguori’s calculation. First, he noted that Liguori
had used a figure of 12.1 years, instead of the correct
figure of 11.1 years, as the life expectancy of the life
tenant, Sandolo. This error produced an incorrect
expected future value of the property encumbered by
the life estate, which formed the basis for Liguori’s
calculation of the plaintiff’s remainder interest. Murray
then indicated that his own use of the correct life expec-
tancy of 11.1 years in the calculation yielded an
expected future value of the property at the time of the
life tenant’s death $1,594,764.
With respect to the discount rate, Murray opined that
Liguori had erred in his calculation. Specifically, Murray
opined that Liguori had used an unsupported discount
rate that was not realistic; he also noted that Liguori
had failed to include any empirical evidence supporting
his choice of a 10 percent discount rate, notwithstand-
ing the fact that the example presented in the Keating
article had used a 10 percent discount rate. In his written
report, Murray wrote: ‘‘It is unlikely that this property
could achieve a 10 percent return. Mr. Liguori con-
cluded on a value of the residence of $1,280,000. In
addition . . . Liguori’s property appraisal indicates
that [the] property taxes are $16,724 per year. In order
for this property to achieve a 10 percent return, the
property would need to generate monthly rent of
$14,194.’’ Murray then noted that because the life tenant
has the right to use and occupy a parcel of real estate
for the duration of his or her life, a life estate is compara-
ble to a tenancy arrangement in a single-family home,
which produces an income stream in the form of rent.
He noted that the risk, therefore, should be measured
in terms of the risk of an income stream produced by
the rental of a single-family home. In connection with
his expert analysis of the property, Murray had
researched real estate rental listings of single-family
homes available for rent in Stamford and had concluded
that an average of $9,317.00 per month was a more
realistic monthly rent for similar sized, single-family
homes in Stamford. Although Murray used his discus-
sion of a more appropriate rent value for the property
to undermine Liguori’s analysis, we note that he did
not proceed, as Keating suggested in his article, to evalu-
ate the present value of Sandolo’s life estate on the
basis of its market rental value over her life expectancy,
which then would have to be discounted to present
value.21
As previously noted, over the plaintiff’s objection,
the trial court permitted Murray to testify about dis-
count rates that potentially applied to the value of the
plaintiff’s remainder interest. Murray inserted two of
his discount rate selections into the Keating formula to
arrive at two alternate valuations significantly higher
than the values testified to by Liguori and Tooher. One
of these rates, the Applicable Federal Rate (AFR), which
the court adopted, was identified by Murray as a ‘‘rate
. . . used for debt instruments that don’t have stated
interest rates [by the IRS]. So, usually, it’s used if there’s
a related party transaction and they need to apply an
interest rate . . . .’’ The AFR, available on the IRS web-
site, is used by the IRS to impute an interest rate to a
family loan transaction where one is not stated, and
at the time of trial, it was 3.37 percent.22 When the
defendant’s counsel asked Murray whether the IRS used
the AFR to evaluate the value of a remainder interest,
the plaintiff objected, claiming that there is ‘‘zero con-
nection’’ between the imputed rate on family loans and
the evaluation of a remainder interest in residential real
estate. The court sustained the objection.23 Murray then
admitted that although he had read the Keating article,
he did not know the basis for his application of the 10
percent discount rate back in 1998. He also admitted
that there was no market for a remainder interest in a
life estate.
The plaintiff recalled Liguori to dispute the applicabil-
ity of the discount rates cited by Murray due to the
limited liquidity of a remainder interest. Liguori testified
that ‘‘[a] remainder interest is a very narrow buyer’s
market. You can’t advertise this on a multiple listing.
People are not going to come and buy this house
because it’s going to be tied up for twelve, twenty years,
or however many years. You can’t use the house. There’s
no tangible working model that you can do with it
except wait.’’
The plaintiff also asked Liguori to explain to the court
if he had arrived at his discount rate of 10 percent by
other means, apart from reading it in the hypothetical
discussed in Keating’s article. Liguori attempted to
explain that because one has very little opportunity to
exercise any property rights in a remainder interest
until the life tenant dies, investment in a remainder
interest entails high risk, unlike the investments that
Murray referenced in calculating his recommended dis-
count rates: loaning money at interest or purchasing
an investment in a real estate investment trust. Liguori
also explained in this testimony that one cannot finance
a remainder interest at a regular rate and can only
finance it at a higher rate because one cannot occupy
the property, sell it, or liquefy it quickly. As a result,
Liguori explained, if a party wanted to buy the plaintiff’s
remainder interest, it would want to purchase the house
for much less than its fair market value because it might
have to wait for a significant time to exercise prop-
erty rights.24
The court, however, still was not persuaded by Ligu-
ori’s explanation of how he had arrived at a 10 percent
discount rate, which he called a conservative estimate
in light of the range of investment risks between a low
risk of 1 percent on a Treasury bill and a high risk of
30 percent for a developer building homes. Again, Ligu-
ori was unable to fully explain a precise method by
which to calculate a discount rate pertaining to a
remainder interest valuation. Furthermore, he was
unable to specify, to the court’s satisfaction, a currently
accepted discount rate that was based on market condi-
tions, property type, or the expected date of the life
tenant’s death. Liguori did not establish persuasively
the derivation of a higher discount rate by any specific
formulation, as suggested in the Keating article, and
the court again rejected his adherence to a 10 percent
discount rate. Instead, the court accepted the discount
rate proposed by Murray, which was based on the AFR,
the rate applied to related party loan transactions.
Despite the fact that the plaintiff has little prospect for
accessing the value of her remainder interest in the
property for the period of Sandolo’s actuarial lifespan,
the court found the present value of the plaintiff’s
remainder interest to be $1,103,806 against a current
fair market value of $1,280,000, which was greater than
86 percent of its actual fair market value.
As previously noted, we agree that it was proper for
the court to reject the testimonial assertions of Liguori
and Tooher as unpersuasive due to their inability to
explain the derivation of the formulas that they used
in their proposed methodologies. We also conclude,
however, that the court, in placing a value on the plain-
tiff’s remainder interest, erroneously relied on Murray’s
testimony because it did not properly apply the Keating
methodology, which the court specifically had adopted.
The court indicated that it had accepted the Keating
methodology, which proposed calculating a discount
rate on the basis of several factors.25 In his article,
Keating explained that ‘‘[f]orecasting a future value and
then discounting it back to present value again may
seem illogical, especially when current value is already
known.26 But the procedure is necessary, however, as
the current value of the property is an unencumbered
value, and the appraisal assignment is to estimate the
value of a property encumbered by a life estate. The
applicable discount rate is a function of the property
type, market conditions and the expected date of
death.’’ (Footnote added.) Keating’s article, unfortu-
nately, did not give any formulaic basis for his determi-
nation of the appropriate discount rate, or describe
how, in his hypothetical, he had arrived at a 10 percent
discount rate.27 The article also suggested a methodol-
ogy for valuing the interest of the life tenant, and it was
this discussion to which Murray only partially alluded in
his report. After calculating the value of the remainder
interest in his hypothetical, Keating also calculated the
value of the life tenant’s estate by using the market rent
for the home occupied by the tenant. He then noted
that if market rents were forecast to increase at a rate
of 3 percent per year over the remainder of the expected
life of the life tenant, the value of her interest at the
same 10 percent discount rate could be calculated. With
this calculation in his hypothetical, Keating produced
a value for the life tenant’s interest that could be added
to the value of the remainderman’s interest and result
in a total amount that would be nearly equivalent to
the present fair market value of the home. Murray never
engaged in this latter exercise of calculating the value
of the estate of the life tenant, Sandolo, despite spending
a considerable amount of time discussing how much
rent Sandolo would be paying if the home was rented
to her at market rates. Therefore, we are unable to
perceive how the court properly could have concluded
that the discount rate applied by Murray would have
achieved results consistent with the hypothetical in the
Keating article. We reach this conclusion, as we are
unable to determine if the discounted present value of
Sandolo’s life estate interest, based on the employment
of market rental rates over the next 11.1 years, together
with the value of the plaintiff’s remainder interest pro-
posed by Murray, would have been approximately
equivalent to the present fair market value of the home.
In light of Murray’s opinion that there is no market
for investment in remainder interests, we agree with
the plaintiff that Murray’s use of discount rates applica-
ble to low risk investments had no relation to a high
risk investment like the purchase of a remainder inter-
est, nor were they mentioned as proper discount rates
for the appraisal of either a life estate or remainder
interest in Keating’s methodology, which the court
accepted as proper.
We are mindful that ‘‘the trial court need not necessar-
ily specify a valuation method used. Nor is the court
required to set forth specific factors that were consid-
ered in arriving at that determination.’’ South Farms
Associates Ltd. Partnership v. Burns, 35 Conn. App.
9, 18, 644 A.2d 940, cert. denied, 231 Conn. 912, 648
A.2d 157 (1994). Here, however, the court indicated that
it was employing Keating’s approach to valuation, an
approach with which neither Liguori nor Murray took
issue. The question, therefore, is not whether the court
utilized a correct approach to valuation, but whether
the court’s determination of value in using the Keating
approach was clearly erroneous.
We reiterate that ‘‘[i]n selecting and applying an
appropriate valuation method, the trial court has con-
siderable discretion. . . . The trial court’s findings will
be overturned only if it misapplies, overlooks, or gives
a wrong or improper effect to any test or consideration
which it was [its] duty to regard.’’ (Citation omitted;
internal quotation marks omitted.) Bornemann v.
Bornemann, supra, 245 Conn. 532. We conclude that
the court, in the face of three divergent explanations
of valuation, lost sight of the rationale underlying Keat-
ing’s proposed methodology, which it indicated that it
had accepted, and veered into an unfounded compari-
son between returns on common, low risk investments
and the return on a less common, higher risk investment
in a remainder interest in real property. ‘‘Although the
court has leeway in determining the value of assets
in a marital dissolution, a market value approach to
valuation, nevertheless, necessarily requires an exami-
nation of the marketability of the asset being
appraised.’’ Brooks v. Brooks, 121 Conn. App. 659, 668,
997 A.2d 504 (2010).
In the present case, both Liguori and Murray agreed
that the marketability of the plaintiff’s remainder inter-
est was practically nil, so long as the life estate interest
remained vested in Sandolo, yet the court, on the basis
of Murray’s testimony, ascribed a value to it that was
the near equivalent of the real property’s present fair
market value. The court failed to examine and draw
necessary conclusions regarding the amount that a will-
ing buyer would pay for the plaintiff’s remainder inter-
est in the property. Thus, on the basis of the entire
evidence presented as to the valuation of a remainder
interest, we, as the reviewing court, are ‘‘left with the
definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) St.
Joseph’s Living Center, Inc. v. Windham, 290 Conn.
695, 707, 966 A.2d 188 (2009).
The judgment is reversed only as to the court’s finan-
cial orders and the case is remanded to the trial court
for further proceedings, consistent with this opinion,
with respect to the enforceability of the parties’
agreement with the plaintiff’s mother and with respect
to all of the court’s financial orders. The judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
On the basis of our conclusion that the court must reconsider all financial
orders as a result of the error it committed in determining the value of the
plaintiff’s remainder interest in the property she owned but in which her
mother, Marianna Sandolo, retained a life estate, we need not reach the
plaintiff’s final claim regarding the award of lump sum alimony.
2
In Mensah v. Mensah, supra, 145 Conn. App. 645–46, this court held that
a trial court’s orders with respect to alimony, child support, and the division
of the marital estate lacked the requisite evidentiary basis and could not
stand, as the trial court did not have sufficient financial information from
the parties to issue fair and equitable dissolution orders. The trial court
entered financial orders even though it expressly had found that the parties
had failed to produce requisite discovery information as to the amount and
sources of their income, the value of the wife’s pension plan, or the defen-
dant’s businesses. Id., 647–48. The lesson in Mensah is that a court needs
proper financial information to enter orders that are not based on speculation
and conjecture. Id., 653.
3
Subsequent to the filing of this appeal, the plaintiff sought an articulation
from the trial court. In its articulation dated August 14, 2014, the court
explained that ‘‘[a]fter the evidence was closed, the court remained uncon-
vinced that the appropriate discount rate had been applied, [so it] visited
a website simply to check the historical [Internal Revenue Service] discount
rate. After doing so, and in light of the recently decided case of Mensah v.
Mensah, supra, 145 Conn. App. 644 . . . the court determined that it needed
additional evidence, and called the parties back to court, reopened the
evidence and gave each an opportunity to present further expert testimony
limited to the calculation of the appropriate discount rate and the valuation
of the remainder interest. The [defendant] chose to do so, but the [plaintiff]
declined, relying on the previous testimony.’’
4
Vested remainder interests that have an ascertainable, actual value may
be considered as an interest in fashioning marital dissolution orders. See
Dietter v. Dietter, 54 Conn. App. 481, 502–503, 737 A.2d 926 (‘‘In the present
case, the trial court made no finding as to the actual value of the plaintiff’s
remainder interest in the terminated trust. On remand, if the trial court is
able to ascertain the value of the plaintiff’s interest, it may consider this
interest in fashioning the financial orders. If, on the other hand, the trial
court cannot make a proper valuation of the plaintiff’s interest and in its
discretion it awards alimony, it may fashion the decree to allow for modifica-
tion of the award when the value of the interest becomes ascertainable.’’),
cert. denied, 252 Conn. 906, 743 A.2d 617 (1999). If a court concludes that
proper valuation of an asset, such as an inheritance, cannot occur until a
later time, after the occurrence of some contingency, it may ‘‘postpone
consideration of the inheritance until such time as its value could be ascer-
tained with reasonable certainty.’’ Bartlett v. Bartlett, 220 Conn. 372, 384,
599 A.2d 14 (1991).
5
This court has stated: ‘‘The trial court may award alimony to a party
even if that party does not seek it and has waived all claims for alimony.’’
Lord v. Lord, 44 Conn. App. 370, 374, 689 A.2d 509, cert. denied, 241 Conn.
913, 696 A.2d 985 (1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1065, 140
L. Ed. 2d 125 (1998).
6
Assuming Sandolo survived the period of her full life expectancy of 11.1
years, the plaintiff may have been obligated to pay this lump sum alimony
in full, at a rate of $22,500 per year before a full possessory fee simple title
to the property—which would then be worth its full market value—reverted
to her. The court attributed earnings to the plaintiff of approximately $50,000
per year, but her financial affidavit reflected a weekly net income of $737,
or $38,324 annually.
7
Although the plaintiff filed an appeal from both the judgment of dissolu-
tion and the denial of her motion to reargue, she did not raise any issue
regarding the denial of her motion to reargue in her preliminary statement
of issues and has not briefed any claims involving it. We therefore deem
that claim abandoned. See Hanover Ins. Co. v. Fireman’s Fund Ins. Co.,
217 Conn. 340, 343 n.4, 586 A.2d 567 (1991).
8
This portion of the articulation failed to resolve inconsistencies in the
court’s original memorandum of decision. As noted previously in this opin-
ion, after discussing the deficiencies of the agreement with respect to enforc-
ing it against the defendant, the court indicated that it need not abrogate
it, but that it would resolve the family dispute by ‘‘alternate means to achieve
an equitable resolution . . . .’’ Later in that same decision, however, the
court declared paragraph 3 of the agreement void as against public policy
and unenforceable against the defendant. As we will discuss further in part
I of this opinion, in treating the plaintiff’s remainder interest as a marital
asset for purposes of distribution of the marital property, the court effectively
declined to enforce paragraph 3 of the agreement, wherein the defendant
promised not to seek to have the plaintiff’s interest in the property treated
as a marital asset in the event of a dissolution of the parties’ marriage.
9
The court also indicated that it did not ‘‘consider the timing of when
the parties occupied 85 Doolittle Road, which according to some testimony
occurred as early as 2005, to be a critical factor in its decision, since it did
not award the [defendant] a share of the real property.’’ Furthermore, the
court stated that its reasoning for awarding the defendant lump sum alimony
equal to 20 percent of the value of the plaintiff’s remainder interest was
clearly set forth in its original memorandum of decision and needed no
further articulation.
10
As previously noted, in its articulation, the court denied that it had
intended to declare the agreement unenforceable.
11
Paragraph 1 of the agreement specifically states that the consideration
for the donative transfer of the remainder interest to the plaintiff was the
defendant’s waiver in paragraph 3. Nowhere in the agreement is there any
indication of what consideration the plaintiff gave to the defendant in
exchange for his waiver.
12
The court, having ultimately treated the agreement as unenforceable as
to the defendant, could have then considered the possible alternative that
the defendant be awarded a share of the remainder interest in the property,
rather than lump sum alimony. The court unnecessarily precluded this alter-
native from consideration.
13
The plaintiff also claims on appeal that the order of lump sum alimony,
payable in $25,000 annual installments, was excessive in light of her income,
making it more likely that she would need to utilize the remainder interest
asset to satisfy the obligation. We need not address this issue. See footnote
1 of this opinion.
14
Sandolo, as the grantor, also promised to pay any gift taxes due, if any,
in connection with the transaction.
15
‘‘Even if neither party’s pleading or proof reveals the [public policy]
contravention, the court may ordinarily inquire into it and decide the case
on the basis of it if it finds it just to do so . . . .’’ 2 Restatement (Second),
Contracts, c. 8, topic 1, introductory note, p. 5 (1981).
16
Additionally, among the issues the court may choose to consider on
remand is whether Sandolo should be included as a necessary party. Under
Connecticut law, ‘‘[n]ecessary parties . . . are those [p]ersons having an
interest in the controversy, and who ought to be made parties, in order that
the court may act on that rule which requires it to decide on, and finally
determine the entire controversy, and do complete justice, by adjusting all
the rights involved in it. . . . [B]ut if their interests are separable from
those of the parties before the court, so that the court can proceed to a
decree, and do complete and final justice, without affecting other persons
not before the court, the latter are not indispensable parties.’’ (Internal
quotation marks omitted.) In re Devon B., 264 Conn. 572, 579–80, 825 A.2d
127 (2003). Indispensable parties have been described as persons whose
‘‘interest in the controversy is such that a final decree cannot be made
without either affecting that interest or leaving the controversy in such
condition that its final disposition may be inconsistent with equity and good
conscience. . . . Joinder of indispensable parties is mandated because due
process principles make it essential that [such parties] be given notice and
an opportunity to protect [their] interests by making [them] a party to the
[action].’’ (Citations omitted; internal quotation marks omitted.) Hilton v.
New Haven, 233 Conn. 701, 723, 661 A.2d 973 (1995).
In the present case, the trial court noted that, despite its ruling, Sandolo
might, in the future, seek to ‘‘undo the transfer should the court void the
[defendant’s waiver],’’ an acknowledgment that its effort to avoid the issue
of the agreement’s unenforceability might still lead to ‘‘the protracted, con-
tentious, and acrimonious litigation’’ the court was seeking to avoid. Sandolo
may be entitled to some form of restitution should the agreement be declared
unenforceable. In Gaudio v. Gaudio, 23 Conn. App. 287, 293–94, 580 A.2d
1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990), this court approved
the joinder or intervention of third parties as permissible where third parties
had claimed an interest in property involved in the proceedings. ‘‘The policy
supporting this view is the desirability of avoiding multiple suits and of
granting complete relief in a single proceeding.’’ Id., 293.
17
Although we have briefly discussed some of the issues that the court
may choose to consider when it evaluates the agreement at issue on remand,
nothing in our discussion is meant to suggest an outcome with respect to
that inquiry, or to limit the issues that the parties may raise or that the court
may consider with respect to the enforceability of the agreement.
18
We observe that the court also was careful not simply to use the informa-
tion it had obtained on discount rates from Internet research that it had
conducted on its own, which would have been improper as not having been
part of the trial evidence. See Abington Ltd. Partnership v. Heublein, 246
Conn. 815, 819, 717 A.2d 1232 (1998) (independent investigation of facts of
case not shown to be improper under Code of Judicial Conduct, canon 3
[a] [4] [now rule 2.9 (a)] if information gleaned did not influence court’s
decision).
19
The court did not insert any evidence which was outside the record. It
questioned and rejected Liguori’s discount rate, the deficiency of which
was evident to the court during the defendant’s cross-examination, and
ultimately, it accepted one of the discount rates testified to by Murray. It
should not have come as a surprise to the plaintiff that the discount rate
proffered by her expert was suspect, yet by recalling Liguori as a witness,
the plaintiff chose to persist in maintaining, after the evidence was reopened,
that Liguori’s discount rate was appropriate because his rate resulted in the
lowest valuation of her interest. The court, however, did not find Liguori’s
defense of his 10 percent rate persuasive.
20
We observe that none of the expert witnesses considered, at the time
of their valuations, the fact that there was approximately a $100,000 mortgage
on the property.
21
We note that Liguori also did not attempt to calculate the value of
Sandolo’s life estate on the basis of its market rental value over her life
expectancy.
22
The other rate that Murray used concerned the ten year historical perfor-
mance for Real Estate Investment Trusts (REITs), which are securities that
invest in income producing property. This rate was 4.72 percent. Although
Murray conceded that there was an obvious and stark qualitative difference
between the plaintiff’s remainder interest and an investment in a REIT, he
nevertheless used the rate applicable to REITs. Murray indicated that unlike
a REIT, a remainder interest in residential real estate such as the plaintiff’s
has no market; a remainder interest cannot be readily purchased or sold.
23
In fact, the IRS promulgates a table on its website that specifically
applies to the valuation of life estates and remainder interests for gift tax
purposes. Pursuant to the Internal Revenue Code, 26 U.S.C. § 7520 (2012),
the interest rate used to make this value calculation for a particular month
is the rate that is 120 percent of the applicable federal midterm rate (com-
pounded annually) for the month in which the valuation date falls. That
rate is then rounded to the nearest two-tenths of 1 percent. The IRS has a
publication, ‘‘Actuarial Valuations,’’ describing the methodology, which can
be accessed online. See Internal Revenue Service, ‘‘Actuarial Valuations–
Version 3A,’’ (last modified May, 2009), pp. 2–11, available at www.irs.gov/
pub/irs-pdf/p1457.pdf (last visited March, 16, 2016) (copy contained in the
file of this case in the Appellate Court clerk’s office). The methodology is
also used in bankruptcy proceedings to calculate the value of a remainder
interest in real property. See P. Scribner, ‘‘How to Calculate the Value of a
Remainder Interest in Bankruptcy,’’ (March 8, 2011), available at http://
www.scribnerbankruptcyblog.com (see archives for March, 2011) (last vis-
ited March, 16, 2016) (copy contained in the file of this case in the Appellate
Court clerk’s office).
24
Liguori and Murray, therefore, did not dispute the limited marketability
of life estate and remainder interests. One commentator has observed: ‘‘If
one buys a life estate from the fee owner (or is given it, as is more often
the case), the value one pays (or realizes, if it’s a gift) is more or less the
value of the use of the property for the expected life of the buyer (recipient).
The value left to the seller (grantor), whose title is now described as a
reversion, is the rest—or, to put it another way, the value of the reversion
is the expected value of the fee simple title at the expected time of death
of the life tenant, revised to present value. These values are, of course,
speculative. They could change due to those vicissitudes of the market
and the actions of the life tenant, but they also could change substantially
depending on the actual length of the life of the life tenant. These multiple
uncertainties affecting the value of the life estate and of the reversion are
the main reason why very few people actually purchase a life estate in real
property and those who do will typically pay much less than the actuarial
tables and use value of the property would suggest the property is worth.
‘‘When a life tenant dies, the remainderman’s interest in the property
increases in value. One could think of the increase in value as having been
incremental—as the life tenant gets closer to the day of her death, the value
of the remainder increases day to day. One could also think of the increase
as sudden—the remainderman’s interest is difficult to sell and would only
sell at a significant discount before the death of the life tenant. Once the
life tenant dies, the remainderman owns the present possessory fee simple
title to the property, which is then worth the full market value.’’ (Footnotes
omitted.) K. Salzberg, ‘‘Zombie Life Estates, Ghost Value Transfers, and
Phantom Takings: Confusions of Title and Value in Property Law Legisla-
tion,’’ 22 Quinnipiac Prob. L.J. 363, 375–76 (2009).
25
A review of relevant case law discussing the valuation of life estates
and remainder interests indicates that there is no single accepted way of
valuing these limited interests in property. See 51 Am. Jur. 2d, Life Tenants
and Remaindermen § 31 (1970) (‘‘[i]t has been stated that in some states
there is no fixed rule for estimating the value of a life estate, and that each
case must be determined upon its own facts with the end in view of arriving
at an equitable and just valuation’’). We have found no Connecticut appellate
authority that has expressly sanctioned the use of any particular method
for valuation of limited property interests such as life estate and remainder
interests. Such interests are frequently valued by consulting tables promul-
gated for taxation purposes. See, e.g., General Statutes § 12-353 (‘‘The value
of each future, contingent or limited estate, income interest or annuity for
life or lives in being shall, so far as possible, be determined by the rule,
method and standard of mortality and of value set forth in the Commission-
ers’ 1980 Standard Ordinary Mortality Table with interest at six per cent
per annum. The value of the interest remaining after such limited estate
shall be determined by deducting the computed value of the limited estate
from the value of the entire property in which such interest exists.’’); see
also Gregg v. Gregg, 510 A.2d 474, 481 (Del. 1986) (possible to place present
value on remainder interest in property subject to life estate pursuant to
table referenced in state department of finance, division of revenue tax
ruling); In re Estate of Hjersted, 285 Kan. 559, 585, 175 P.3d 810 (2008)
(value of life estate interest owner’s share of proceeds from sale of property
calculated using ‘‘7520 rate’’ for date of sale pursuant to standardized valua-
tion tables promulgated pursuant to 26 U.S.C. § 7520 [2000]). Actuarial tables
also are used by social services departments to assess an individual’s ability
to pay for long-term medical care. See, e.g., State v. Goggin, 208 Conn.
606, 618, 546 A.2d 250 (1988) (alleged value of life estate, when conveyed,
determined according to specified Department of Income Maintenance regu-
lations); Indiana Family & Social Services Administration v. Meyer, 927
N.E.2d 367, 368–69 (Ind. 2010) (remainder interest in farm valued pursuant
to state family and social services administration guidelines); Hansen v.
Hansen, 774 N.W.2d 462, 464 (S.D. 2009) (couple’s remainder interest in
life estate calculated by using actuarial table used by state department of
social services).
26
The court, in fact, expressed at one point that it was baffled by the fact
that the property was estimated to rise in value at the rate of 2 percent a
year, while it was also being discounted to present value using a 10 percent
rate. Specifically, the court stated: ‘‘How is it that you assume a growth rate
of 2 percent going forward to arrive at the day, at a value where, you know,
[Sandolo] goes to her reward? And then, take the present value using a 10
percent [discount rate]; I mean, why isn’t, you know, why is it growing 2
percent this way and declining [10] percent the other way? It just doesn’t—
I’m puzzled by that.’’
27
We note that none of the experts who testified indicated that he had
read Keating’s book, from which the article was excerpted.