HORNUNG v. HORNUNG—FIRST DISSENT
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I
LUMP SUM ALIMONY AWARD
In the present case, the majority upholds the trial court’s financial order awarding the plaintiff, Marjorie Hornung, lump sum alimony of $7.5 million. The defendant, Robert Hornung, claims that, in light of the periodic alimony award, the property settlement resulting from the premarital agreement, and the trial court’s express reliance on statutory criteria pertaining to property division, the lump sum alimony award was an improper property distribution in contravention of the parties’ premarital agreement. More specifically, the defendant claims that the parties intended that all property matters be settled by the premarital agreement. He argues that the lump sum alimony award subverted such intention because it was, either in fact or function, a disguised property distribution. To support his contention that the alimony award is a property distribu
An understanding of the premarital agreement is essential to the resolution of the defendant’s claim. On July 14, 1997, the plaintiff and the defendant executed a premarital agreement. The agreement defines and identifies each party’s separate property. It also defines marital property as ‘‘all property that is acquired by either or both parties subsequent to the marriage . . . .’’ In the event of dissolution of the marriage, the agreement provides that each party shall retain his or her separate property, the defendant will retain the marital property, except for certain personal property, and the plaintiff will receive from the defendant a property settlement payment. A formula for determining the amount of the property settlement payment is provided in the agreement. The payment amount increases with the length of the marriage and the number of children of the marriage. It was the express intention of the parties that the property distribution effectuated by the agreement fully satisfy both party’s claims to property under Connecticut’s equitable property distribution statute,
In addressing alimony and child support, the trial court ordered the defendant to pay the plaintiff periodic unallocated alimony and child support, as well as lump sum alimony. The court awarded $40,000 per month in periodic unallocated alimony and child support, which the parties do not challenge on appeal. That award is
The trial court’s $7.5 million award, despite being characterized by the court as lump sum alimony, operates as a property distribution and subverts the premarital agreement. The award functions as a property distribution because it (1) exceeds the plaintiff’s support and maintenance needs, and (2) requires the defendant to invade the assets he retained pursuant to the premarital agreement in order to meet the claimed alimony obligation.8
I will first address the excessiveness of the alimony, beginning by setting forth the legal principles that govern this determination. Generally, trial courts enjoy broad discretion when equitably distributing property and entering alimony orders in a marital dissolution case. E.g., Greco v. Greco, 275 Conn. 348, 354, 880 A.2d 872 (2005). Such broad discretion is necessary due to the myriad circumstances surrounding marriage dissolution actions and the court’s objective to place each spouse in an equitable postdissolution position. See, e.g., Kiniry v. Kiniry, 299 Conn. 308, 316, 9 A.3d 708 (2010); Mickey v. Mickey, 292 Conn. 597, 615, 974 A.2d 641 (2009). It has often been said that the court’s equitable power is ‘‘the keystone [of] the court’s ability to fashion relief’’ when dissolving a marriage and that, without it, and the court’s broad discretion, it might be impossible to fairly resolve some dissolution disputes. Sunbury v. Sunbury, 210 Conn. 170, 174, 553 A.2d 612 (1989). Nevertheless, divorce is a creature of statute, and the court’s authority to provide relief in such cases is derived therefrom. Id.; Rubin v. Rubin, 204 Conn. 224, 229, 527 A.2d 1184 (1987).
With respect to
Pursuant to
The existence of a premarital agreement in a dissolution action implicates additional statutory provisions, namely, the Connecticut Premarital Agreement Act (act), This case presents this court with its first opportunity to clarify the impact that a premarital agreement has on a trial court’s discretion to structure financial orders pursuant to Conversely, when the parties have entered into a premarital agreement that divides the separate and marital property, but does not address or prohibit alimony, the court’s discretion necessarily narrows.10 Under such circumstances, the trial court no longer has any discretion to divide the parties’ property under My view of the interrelationship between With respect to the present case, for the first ten years following the divorce, the plaintiff will receive $102,500 in monthly support through periodic and lump sum alimony. Thereafter, she will continue to receive monthly periodic unallocated alimony and child support until March, 2029, unless she has remarried or she or the defendant has died. The trial court found, in relation to the alimony award, that time limited alimony was proper and that the purpose of both periodic and lump sum alimony was to provide for the continued support of the plaintiff. In addition, the trial court decided that, ‘‘under all the circumstances, an award of lump sum alimony payable over time, in addition to the award of periodic alimony, [was] appropriate to provide for [the] continuing support of the [plaintiff] . . . given the [plaintiff’s] health issues, her lack of recent employment, her primary child care responsibilities for four children, which limits her ability to enter the workforce on a full-time basis, and her limited opportunity to acquire assets in the future.’’ In light of the more limited discretion trial courts have to fashion alimony orders when the parties have entered into a premarital agreement, reviewing courts In light of these facts, it is difficult to understand how the financial support orders in the present case comport with the limited support purpose of alimony. The plaintiff contends that the award was not excessive and results in only minimal surplus, if any.14 She argues that the periodic award of $40,000 per month is insufficient to provide for her expenses, let alone the expenses of the children, which the award, as unallocated alimony and child support, was intended to cover.15 In addition, she asserts that the shortage is even greater when the tax consequences of the alimony award are considered, and, therefore, the lump sum award was necessary to provide for the shortfall between her and her children’s needs, on the one hand, and the periodic unallocated alimony and child support award, on the other. Even if one were to accept these arguments, the approximately $6.9 million in alimony that is not attributable to the plaintiff’s monthly expenses, which include considerable child care costs; see footnote 15 of this opinion; will certainly provide for the children and the tax consequences of the periodic award, and still result in more than minimally excessive alimony. This is particularly true in light of the fact that the defendant is responsible for a substantial amount of the expenses related to the children. In addition to the child support award, the defendant is required to maintain health and dental insurance for the minor children, provide for 60 percent of their unreimbursed medical and dental expenses, including orthodontic, optical, pharmaceutical and psychological expenses, and pay for one half of the children’s extracurricular activities. Moreover, one child has reached the age of eighteen, another child, who is currently sixteen, is quickly approaching the age of majority, and the other two children are not particularly young—fourteen and eleven, respectively.16 The majority acknowledges that, at the very least, the monthly alimony award of $102,500 exceeds the plaintiff’s stated monthly need of $65,444 per month.17 Nevertheless, the majority argues that this fact alone does not transmute the lump sum alimony award into a functional property distribution. Instead of ending its inquiry there, however, the majority suggests, in light of the marital standard of living, the factors set forth I agree that divorcing spouses are entitled, to the extent practicable, to maintain the standard of living they enjoyed during the marriage and that alimony may be awarded for such purpose.19 See, e.g., Brody v. Brody, 315 Conn. 300, 313, 105 A.3d 887 (2015) (‘‘[t]he generally accepted purpose of . . . alimony is to enable a spouse who is disadvantaged through divorce to enjoy a standard of living commensurate with the standard of living during marriage’’ [internal quotation marks omitted]); Dan v. Dan, 315 Conn. 1, 11, 105 A.3d 118 (2014) (‘‘[o]ne reason for the abandoned spouse’s entitlement to sufficient alimony to ensure the continued enjoyment of the standard of living that he or she enjoyed during the marriage is that the spouse’s efforts increased the other’s earning capacity at the expense of [his or] her own’’ [internal quotation marks omitted]). I further agree that the parties in the present case enjoyed a high standard of living. I cannot agree, however, that the alimony award is necessary for the plaintiff to maintain such a standard. The trial court made no finding regarding the marital standard of living or the monthly marital expenses. Nevertheless, pursuant to Practice Book § 25-30 (a), both the plaintiff and the defendant submitted financial affidavits to the trial court, which cataloged their current incomes, expenses, assets, and liabilities around the time of the dissolution. Our cases have made clear that courts are entitled to rely on the truth and accuracy of such affidavits. See, e.g., Billington v. Billington, supra, 220 Conn. 219. If the trial court is entitled to rely on such affidavits, I see no reason why this court cannot also rely on such affidavits, particularly when the trial court has not discredited such affidavits and appears to have relied on them itself. The plaintiff’s affidavit reveals monthly expenses of approximately $45,000, and a cursory review of her affidavit leaves the reviewer with but one reasonable conclusion, namely, that $45,000 per month is the cost of maintaining her current lifestyle, not, as the majority seems to suggest, merely the cost of her basic living expenses. A sampling of the plaintiff’s monthly expenses is illustrative: more than $2000 for clothing, approximately $1300 for ‘‘personal care,’’ including costs for hairdressing, manicures, pedicures, massages, and fitness classes, and more than $3800 for entertainment, travel, and vacations. The defendant’s affidavit discloses monthly expenses of $97,645. Contained in that amount is a monthly expense for alimony and child support in the amount of $46,000. When the alimony and support expense is subtracted, the defendant is left with $51,645 in his own living expenses. Given the similarity in the monthly expenses Next, the majority notes, and correctly so, that the marital standard of living, or station, and expenses, or needs, of the parties are but two of the statutory factors that the trial court is to consider when entering alimony orders. Consideration of all the factors, the majority states, ‘‘militates against characterizing the lump sum alimony award as a property distribution.’’ Text accompanying footnote 25 of the majority opinion. I presume this means that the majority has concluded, in light of the statutory factors set forth in First, the majority mistakenly assumes that the Second, and relatedly, it is an axiom of matrimonial law that the purpose of alimony is to provide the recipient with support and maintenance. See, e.g., Dan v. Dan, supra, 315 Conn. 10 (‘‘[h]istorically, alimony was based [on] the continuing duty of a divorced husband to support an abandoned wife and should be sufficient to provide her with the kind of living [that] she might have enjoyed but for the breach of the marriage contract by the [husband]’’ [internal quotation marks omitted]); Simms v. Simms, 283 Conn. 494, 503, 927 A.2d 894 (2007) (‘‘[t]he traditional purpose of alimony is to meet one’s continuing duty to support’’ [internal quotation marks omitted]); Gay v. Gay, 266 Conn. 641, 647, 835 A.2d 1 (2003) (‘‘[t]he purpose of both periodic and lump sum alimony is to provide continuing support’’ [internal quotation marks omitted]). Thus, the The alimony award is also justified, the majority suggests, due to the disparity in the premarital agreement’s distribution of the marital assets. The majority emphasizes that the defendant received more than $25 million in assets as a result of the divorce, compared to the approximately $4.5 to $5 million in assets that the plaintiff received.21 To support its suggestion that the alimony award is proper in light of the premarital agreement’s comparative property distribution, the majority cites In a final attempt to justify the lump sum alimony award in the present case, the majority claims that the trial court did not specify how much of the unallocated alimony and child support award was intended for the children’s support, rather than the plaintiff’s. Although the trial court did not expressly state what the child support award amount was, we are not without guidance. Using the trial court’s findings in the present case and the Child Support and Arrearage Guidelines (guidelines) in effect at the time of the dissolution, we can, at the very least, determine the baseline for child support. To assist courts in calculating equitable and consistent child support orders, the guidelines contain a schedule of basic child support obligations based on the number of children and the parents’ combined net weekly income. See Because the monthly alimony obligation of $102,500 unreasonably exceeds the plaintiff’s monthly support need of $45,000, and despite the arguments advanced by the plaintiff and the majority, I conclude that the lump sum alimony award, in conjunction with the peri The defendant has a monthly income of approximately $80,833. The alimony obligation, however, is $102,500 per month. Thus, the defendant’s monthly income is insufficient to satisfy the monthly alimony obligation, and, therefore, the defendant will necessarily need to invade his assets—assets that he was awarded under the premarital agreement—to cover the balance of the obligation, nearly $22,000 per month. Of course, the need to invade assets, in and of itself, does not make the lump sum alimony award a functional property distribution. See Simms v. Simms, supra, 283 Conn. 505 (trial court is not without authority to order alimony simply because such order would require obligor to invade his or her assets); see also Brody v. Brody, 136 Conn. App. 773, 790, 51 A.3d 1121 (2012) (‘‘The defendant may elect to pay the [lump sum alimony] award out of his separate assets, but how he chooses to satisfy his obligation under the court’s order is his decision. The court did not order him to pay the award out of his separate assets. That he plans to do so does not invalidate an otherwise valid award of alimony.’’), rev’d in part on other grounds, 315 Conn. 300, 105 A.3d 887 (2015). When an alimony award is necessary to provide for the support and maintenance of the recipient, the fact that the obligor needs to invade his or her assets to satisfy the obligation does not change the award’s function, which is to provide support and maintenance. On the other hand, when an alimony award is excessive and requires the obligor to invade his or her assets to satisfy the obligation to pay the award, the function of the award changes. In this circumstance, the obligor is forced to transfer assets to the recipient, assets that the obligor was awarded in the dissolution proceeding and that are unnecessary for the support and maintenance of the recipient. In the present case, the alimony order results in the plaintiff receiving at least $6.9 million in excess of her support and maintenance needs. Thus, the award goes beyond the purpose of alimony. Moreover, the award is nearly 127 percent of the defendant’s monthly income, and, therefore, he will need to invade his assets to satisfy the court order. Thus, under the trial court’s current financial support orders, the defendant must transfer to the plaintiff assets that he was awarded under the premarital agreement, assets that are unnecessary for the plaintiff’s support and maintenance. The only logical conclusion is that the trial court has effectuated, whether intentional or not, a transfer of the defen The analysis employed in this case is consistent with the development of matrimonial law in other jurisdictions. Courts in Florida and South Dakota agree that premarital agreements limit the discretion of dissolution courts. See Hannon v. Hannon, supra, 740 So. 2d 1187 (‘‘A primary purpose of [a premarital] agreement is to modify or shrink the general discretion of the dissolution . . . [court] in doing equity between the parties. The agreement itself is intended to define the mutual equities, and the [dissolution court] is not free to ignore its provisions or to render them ineffective. . . . Dissolution . . . courts should attempt to give effect to [premarital] agreements that are . . . properly made and fully enforceable.’’); Walker v. Walker, supra, 765 N.W.2d 754 (same). In Hannon, the husband, George Hannon, Sr., and the wife, Lorain A. Hannon, entered into a premarital agreement, pursuant to which each waived any interest in the separate property of the other, including any rights they might have as a surviving spouse. Hannon v. Hannon, supra, 1182–83. The agreement also provided that the husband promised ‘‘to support [the wife] during their marriage in a manner [that] is consistent with the standard of living of [the husband] from time to time during their marriage,’’ but it did not address alimony. (Internal quotation marks omitted.) Id., 1183. The parties divorced, and the husband challenged the trial court’s lump sum alimony award of $92,736. Id. He argued that the award was, in effect, a property distribution because his separate property was the only source from which he could pay the lump sum alimony award. See id. The Florida District Court of Appeal overturned the lump sum alimony award. See id., 1188. The court recognized that the wife could receive lump sum alimony despite having waived any rights in the husband’s separate property. See id. Nevertheless, the court stated that ‘‘the [premarital] agreement cannot be treated as though it has no limiting effect on the power of the trial [court] to award lump sum alimony. Any such award must be carefully restricted in its amount so that it does not appear to contradict the terms of the [premarital] agreement.’’ Id. The court concluded that the agreement demonstrated the parties’ intent to waive any interest in the property of the other, both during their lifetimes and after death, and the husband’s intent to support the wife during his lifetime only. Thus, the court further concluded that the lump sum alimony award was improper in light of the agreement because it was based on the wife’s, rather than the husband’s, life expectancy. Id. In Walker, the wife, Debra Sue Walker, and the husband, Edward Walker, Jr., entered into a similar agree Even if the lump sum alimony award in the present case was not a functional property distribution, I would still find it to be improper under the circumstances. As I already discussed, the award far exceeds the plaintiff’s needs for support and maintenance. For that reason alone, I believe it undermines the premarital agreement. When the parties agreed to allow the court to set alimony in the event of a divorce, they intended for the court to award an amount that would provide for the recipient spouse’s support; after all, that is what alimony is. According to the plaintiff’s own financial affidavit, that amount is approximately $45,000 per month. When the trial court entered an order requiring the defendant to pay alimony in considerable excess of the plaintiff’s needs, the order provided the plaintiff with a windfall that was not contemplated by the parties’ premarital agreement. In doing so, the trial court defeated that agreement.27 When the premarital agreement in the present case was executed, as amended, the plaintiff and the defendant intended that, if their marriage were to be dissolved, each would keep his or her own separate property, the defendant would keep the marital property and, in exchange, the plaintiff would receive a property settlement payment, which increased with the length of the marriage and the number of children, and the court would set an alimony award. Because the purpose of alimony is to provide support and maintenance, at the time of dissolution, the alimony award the parties had bargained for was approximately $45,000 per month. Of course, the award need not be that amount exactly and could be in lump sum, rather than periodic, form. The trial court, however, awarded more than twice that amount. That is not what the parties bargained for. Thus, the court’s alimony award is improper and undermines the premarital agreement because it exceeds the plaintiff’s support and maintenance needs beyond all reasonable bounds. In light of the foregoing facts, I conclude that the lump In sum, I reiterate my concern with the practical consequences that are likely to follow from the majority’s opinion in the present case. In light of that opinion, trial courts can effectively undermine premarital agreements entered into by prospective spouses by making excessive alimony awards.28 As a result, I fear that parties will be encouraged to include in their premarital agreements provisions either establishing alimony, by amount or formula, or precluding it altogether. Although the public policy of this state generally favors the private settlement of family matters; see, e.g., Billington v. Billington, supra, 220 Conn. 221; and alimony is a permissible subject matter for premarital agreements; The plaintiff filed a cross appeal challenging the enforceability of the premarital agreement. Her appeal, however, was contingent on the defendant prevailing on his claims or this court otherwise remanding the case for the entry of new financial orders. Because I would reverse the trial court’s financial orders and remand the case for a new hearing on the financial matters, I reach the plaintiff’s cross appeal. The plaintiff claims that the trial court incorrectly concluded that the premarital agreement entered into by the parties in The following facts are relevant to this claim. The plaintiff and the defendant executed a premarital agreement on July 14, 1997, approximately three weeks before they were married. As I previously noted, the agreement provided that, in the event of dissolution of the marriage, each party would retain their separate property, the defendant would retain the marital property, with the exception of certain personal property, and the plaintiff would receive a property settlement payment, which increased with the length of the marriage and the number of children. Both parties made financial disclosures in connection with the agreement, including a disclosure by the defendant of his proprietary interest in a certain software program. At that time, the defendant valued that interest at between $285,000 and $570,000. Within three years of marrying, the defendant sold the software and received approximately $37 million for his interest in it. In July, 2008, the parties amended their premarital agreement. The amendment ratified and confirmed the terms of the original agreement. In addition, it granted the plaintiff a separate interest in the marital home and provided that, in the event of a legal separation or a divorce, the plaintiff would receive $3.5 million for such interest, along with any payment due pursuant to the formula set forth in the original agreement. The parties again made financial disclosures in connection with the amendment. Among other things, the defendant listed his taxable income for 2004, 2005, and 2006 in the amounts of $1,249,989, $902,025, and $1,687,677, respectively. He did not, however, disclose his 2007 income or his income in 2008 as of the date of the amendment, namely, July 10. I will begin with the standard of review and governing legal principles. A trial court’s determination of whether a premarital agreement is unenforceable under Premarital agreements entered into on or after October 1, 1995, such as the agreement in the present case, are governed by the Connecticut Premarital Agreement Act (act), The plaintiff contends, among other things, that the defendant’s financial disclosure in connection with the 2008 amendment to the premarital agreement was not fair and reasonable because he did not disclose his 2007 and 2008 income. In response, the defendant argues that he provided the plaintiff with a three year income history, including 2004, 2005, and 2006. He further contends that he generally does not know his exact annual income until he has filed his income tax returns and that, as of July, 2008, he had not filed his 2007 income tax return; therefore, he could not have disclosed his 2007 and 2008 income at the time the parties amended their premarital agreement. Under these circumstances, the defendant claims that his financial disclosure was fair and reasonable.30 Friezo is our seminal, and only, case addressing what constitutes a fair and reasonable disclosure under II
ENFORCEABILITY OF PREMARITAL AGREEMENT
Finally, we considered the case law of this and other jurisdictions. We began with McHugh, noting that the act was intended to clarify and not supplant it. Id., 185-86 and n.23. McHugh was the first case in our modern history to consider the enforceability of a premarital agreement. McHugh v. McHugh, supra, 181 Conn. 485. In that case, we concluded that a premarital agreement is enforceable if, among other things, each party discloses to the other “the amount, character, and value of individually owned property . . . .” Id., 486. The duty is one of disclosure and not of inquiry, we noted, for that is the only way in which a court can ensure that the parties have intelligently waived their statutory rights. See id., 486-87. Moreover, because prospective spouses are in a confidential relationship, each must exercise good faith, candor, and sincerity in matters bearing on the agreement. Id., 487. In Friezo, we gleaned three important points from McHugh: “First, the purpose of disclosure is to ensure that each party has sufficient knowledge of the other party‘s financial circumstances to understand the nature of the legal rights being waived. . . . Second, financial disclosure in Connecticut must be understood as a burden to inform borne solely by the disclosing party. . . . Third, full financial disclosure is required in a [premarital] agreement only if the party to whom disclosure is made does not have independent knowledge of the other party‘s financial circumstances.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Friezo v. Friezo, supra, 281 Conn. 186-87.
After reviewing cases from other jurisdictions, we
After determining the meaning of “fair and reasonable,” we turned to the facts in Friezo. See id., 191-93. In Friezo, the trial court had found that the husband‘s financial disclosure was not fair and reasonable because the wife was not provided sufficient time to examine the disclosure and lacked sufficient knowledge to understand the disclosure. See id., 179, 192. It did not find, however, that the disclosure was inaccurate or incomplete, nor did the wife make any such allegations. See id., 192. Ultimately, this court concluded that the husband‘s financial disclosure in Friezo was fair and reasonable because the standard is concerned with the content of the disclosure rather than the timing of the disclosure or the receiving party‘s capacity to understand the disclosure.31 See id., 183, 191-93. The content of the husband‘s disclosure, we concluded, was adequate. See id., 191. When the husband and the wife entered into the agreement in November, 1998, the husband disclosed his 1997 gross income, excluding capital gains, and he provided a list of assets and liabilities, including individual values with respect to most items. Id.
Although this court has not had the opportunity to revisit this issue since Friezo, the Appellate Court has twice addressed the question of fair and reasonable disclosure under
The Appellate Court disagreed, however, and determined that the husband‘s disclosure was not fair and reasonable. Id., 616; see id., 624. That court reasoned that the real estate schedule did not expressly identify the net income that the husband received or was entitled to receive, and it did not provide the wife with a formula or other information directing her on how she might determine his share of the rental income. Id., 621. Moreover, the husband conceded at trial that not all the necessary information was provided to accurately calculate the income that he would receive from the rental properties. Id. For example, he testified that there is often a holdback of rental income, but the schedule did not provide any information regarding holdbacks. Id. Finally, the Appellate Court concluded that the trial court had incorrectly concluded that the husband‘s additional sources of income, such as consulting fees, distributions, and interest and dividend income, were irrelevant to the validity of his disclosure and improperly considered the wife‘s motive for signing the premarital agreement in assessing the fairness and reasonableness of the husband‘s disclosure. See id., 622-23. In light of these facts, the Appellate Court concluded that, although the husband may have provided a fair and reasonable disclosure of his assets, he failed to make such a disclosure of his income. See id., 624.
The Appellate Court next considered this question in Beyor v. Beyor, supra, 158 Conn. App. 752. The defendant, the wife, appealed from the judgment of the trial court, which enforced the premarital agreement that she entered into with the plaintiff, the husband. Id., 754. The parties entered into the agreement in August, 2006, waiving any claims that they might have had in each other‘s property and any right to receive alimony or support in the event of a divorce. Id. On appeal, the wife argued that the premarital agreement was unenforceable because, among other things, the husband‘s financial disclosure was not adequate. Id., 762. Specifically, she contended that his disclosure omitted his Internal Revenue Service “Schedule E income,”32 which was $394,048 in 2006, and that such an omission required a finding that the disclosure was not fair and reasonable under Oldani. Id. The Appellate Court disagreed. See id., 765. The court distinguished Oldani by noting that, in Oldani, the husband did not list any income, the parties had a minor child, and the premarital agreement provided for some alimony. Id., 764. The court noted that that was unlike the facts in Beyor because the husband in Beyor had disclosed the amount, character, and value of property, financial obligations, and income, excluding the Schedule E income, the parties had no children, and the parties waived all rights to alimony in the premarital agreement. Id., 764-65. Thus, the Appellate Court reasoned that the wife knew going into the marriage that the husband had substantially more financial worth than her and that she would not be entitled to any of it if they divorced. Id., 764-65. Moreover, the court noted that, although the husband did not disclose his Schedule E income, he did disclose the sources of such income, his interest in those sources, and the value of those sources. See id., 765. I am convinced that Beyor was incorrectly decided, and, therefore, I will not apply its reasoning to the present case.33
With this background in mind, I turn to the present case. I begin by noting that what is a fair and reasonable financial disclosure under
The defendant argues that he disclosed three years of historical income and that such a disclosure was sufficient to provide the plaintiff with a “general approximation” of his income. (Emphasis omitted; internal quotation marks omitted.) A disclosure of historical income information, however, does not provide a general approximation of the defendant‘s current income.34 I conclude that a fair and reasonable disclosure requires the disclosing party to divulge his or her current income. This is consistent with the purpose of the disclosure
The defendant also argues that he could not have disclosed his 2007 and 2008 income when the parties executed the 2008 amendment because he did not have the tax information for those periods at that time and, thus, was not aware of his precise income for those tax years. This argument is unavailing. First, as the defendant has acknowledged, an exact disclosure of his income is not necessary. Indeed, all that is required for a fair and reasonable financial disclosure is that the defendant provide the plaintiff with “a general approximation of [his] income, assets and liabilities . . . .” Friezo v. Friezo, supra, 281 Conn. 191. Thus, he need not wait until his income tax returns are filed in order to make an exact disclosure. He can instead provide an accurate and reasonable estimate of his income. Moreover, there can be no doubt that, by July, 2008, he had some general idea of the income he had received in 2007 and the income he had received during the first half of 2008. Second, at trial, the plaintiff claimed that it was improper for the defendant to value the assets in his financial disclosure as of December 31, 2007, when he had available valuations for those assets that were contemporaneous with the execution of the amendment to the premarital agreement in July, 2008. Although the trial court did not find the use of the six month old valuations fatal, and I express no opinion on that issue, it did note that “the evidence supports a finding that the [defendant] actually had available virtually all [of] the asset figures on a contemporaneous basis, and, by inference, his income figures as well.” (Emphasis added.) Thus, it appears, despite the defendant‘s contention, that he would have been able to provide income estimates for 2007 and 2008 when the parties amended their premarital agreement.
Finally, the defendant contends that, if he had provided a “snapshot” of his 2008 income at the time the parties amended their premarital agreement, and had that snapshot turned out to be substantially higher than his actual 2008 income, the plaintiff would still be challenging the accuracy of his disclosure. Even if that were true, it does not excuse him from making such a disclosure. The defendant had a duty to disclose information that would provide the plaintiff with a general approximation of his income. If, for whatever reason, the disclosure subsequently appeared to the plaintiff to be inconsistent with the defendant‘s actual 2008 income, and she wanted to challenge the accuracy of such disclosure, that is her prerogative. In such a case, she would carry the burden of establishing that the disclosure was inaccurate when it was made. See
In sum, the defendant did not make a fair and reasonable financial disclosure when the parties executed the 2008 amendment to their 1997 premarital agreement, and I therefore conclude, pursuant to
For the foregoing reasons, I respectfully dissent.
Notes
Additionally, the defendant claims that the trial court “expressly considered equitable factors such as the parties’ children, even though the premarital agreement expressly contemplated children and provided for an increased property award in that event.” I am not sure how consideration of the parties’ children demonstrates that the alimony award is a functional property distribution. Moreover, it is unclear why a court‘s consideration of the minor children in awarding support to a custodial parent would be improper. It is true that the formula for dividing marital property in the premarital agreement contemplated the children. That does not, however, foreclose consideration of the same factor when support determinations are made. Indeed,
I note that, even with these adjustments, the plaintiff‘s monthly expenses are likely overstated. She claims $2712 in monthly medical expenses for both her and the children, and $6846 for the children‘s monthly expenses, including various extracurricular activities (this figure excludes the Bat Mitzvah expense previously discussed). The defendant, however, was ordered to pay one half of the costs for the children‘s camps, tutors, lessons, and extracurricular activities, and to provide for the children‘s health and dental insurance and to pay 60 percent of the unreimbursed medical and dental expenses. For a period of three years, the defendant also must pay the premiums for the plaintiff‘s continuing health insurance coverage, should she elect to obtain such coverage.
First, the defendant in the present case claims that the trial court‘s lump sum alimony award is an improper functional property distribution. In order to be a property distribution, the award must distribute some of the defendant‘s property to the plaintiff; therefore, necessarily subsumed in the defendant‘s claim is the argument that he will need to invade assets to satisfy the alimony award. Moreover, at oral argument in the present case, counsel for both the plaintiff and the defendant discussed the defendant‘s need to utilize assets to meet the alimony obligation and the impact, if any, that fact should have on this court‘s resolution of this case.
Even if I agreed that the defendant has not argued that he will need to invade his assets to satisfy the alimony obligation—which I do not—that would not prevent this court from considering such an argument in the present case. Indeed, this court generally will not consider claims that the parties have not raised; see, e.g., State v. Connor, 321 Conn. 350, 362, 138 A.3d 265 (2016) (“appellate courts generally do not consider issues that were not raised by the parties“); and this opinion is consistent with that principle. I have not addressed any claim that was not raised by the defendant. Instead, I have merely decided the specific claim asserted by the defendant, namely, that the lump sum alimony award is a functional property distribution, albeit, on the basis of a slightly different argument or theory than the defendant presented. See, e.g., State v. Dickson, 322 Conn. 410, 467 n.5, 141 A.3d 810 (2016) (Zarella, J., concurring in the judgment) (noting that majority declined to adopt any of defendant‘s three alternatives for prescreening eyewitness identification testimony, opting instead to craft rule of its own creation); Waterbury v. Washington, 260 Conn. 506, 549, 800 A.2d 1102 (2002) (agreeing with plaintiff‘s claim but for reasons different from those that plaintiff advanced). It is not improper for me to consider the defendant‘s need to invade assets because “it is an argument, not a claim.” (Emphasis in original.) Michael T. v. Commissioner of Correction, 319 Conn. 623, 635 n.7, 126 A.3d 558 (2015); see id. (this court may “review legal arguments that differ from those raised before the trial court if they are subsumed within or intertwined with arguments related to the legal claim raised at trial” [internal quotation marks omitted]). The majority‘s contrary assertion must be based on a misunderstanding of the argument-claim distinction. “Generally speaking, an argument is a point or line of reasoning made in support of a particular claim.” State v. Fernando A., 294 Conn. 1, 116 n.32, 981 A.2d 427 (2009) (Palmer, J., dissenting in part). Arguments and claims are not subject to the same rules. See id. (“[o]nly claims are subject to our rules of preservation, not arguments“). Moreover, the defendant‘s claim raises an issue of first impression. Accordingly, it would be unfair and inequitable for this court to decline to address the claim fully simply because the defendant did not accurately foresee the exact argument on which the court would rest its decision. Cf. Rowe v. Superior Court, 289 Conn. 649, 661 n.6, 960 A.2d 256 (2008) (preservation rules are applied less stringently to arguments of first impression), overruled in part on other grounds by Hardy v. Superior Court, 305 Conn. 824, 48 A.3d 50 (2012). Insofar as the majority is concerned that it would be unfair or prejudicial to the plaintiff to decide the claim that the defendant raises, which is based, in part, on the argument that the defendant will need to invade his assets to satisfy the obligation, the proper remedy would be to order supplemental briefing, not to avoid fully addressing the defendant‘s claim. In fact, this court often orders supplemental briefing when it identifies an argument that may impact the resolution of a claim raised by the parties. See, e.g., State v. Wright, 320 Conn. 781, 786-87, 135 A.3d 1 (2016) (defendant argued that trial court improperly excluded certain evidence under rape shield statute, and we ordered supplemental briefing regarding meaning of “material,” as used in statute).
Second, the majority‘s assertion that “we cannot presume that [the defendant] must invade his assets to pay the alimony and child support awards based [on] this record . . . [because] the [trial] court did not make any determination as to whether its finding of the defendant‘s income was also a finding of his earning capacity” is inconsistent with our case law. (Emphasis in original.) Footnote 20 of the majority opinion. “It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards . . . on the earning capacity of the parties rather than on actual earned income.” (Internal quotation marks omitted.) Tanzman v. Meurer, 309 Conn. 105, 113-14, 70 A.3d 13 (2013). We have recently decided, however, “that, when a trial court has based a financial award pursuant to
A recent decision of the Appellate Court is instructive. In Dumbauld v. Dumbauld, 163 Conn. App. 517, 523, 136 A.3d 669 (2016), the Appellate Court considered a pendente lite alimony award that exceeded the obligor‘s income and, as a result, had to be paid out of the obligor‘s assets. Acknowledging that alimony in excess of the obligor‘s income had been upheld in the past, the Appellate Court nevertheless concluded that the award was an improper property distribution. Id., 531. It reasoned that the cases permitting alimony in excess of net income were distinguishable on two grounds. See id., 527. First, in many cases, the court had found the obligor‘s evidence regarding his or her income to be untrustworthy and made specific findings as to either imputed income or earning capacity. Id. Second, those courts allowing alimony to be based on an ability to pay, rather than on imputed income, earning capacity, or actual income, had the authority, pursuant to
The plaintiff also argues that the defendant has waived the argument that
First, I believe that the plaintiff reads the trial court‘s decision to establish more than it does. The finding that the plaintiff relies on must be read in context. At trial, the plaintiff argued that the defendant‘s disclosure of his assets was inadequate because he had valued the assets as of December 31, 2007, rather than contemporaneously with the execution of the amendment to the premarital agreement in July, 2008. In addition, she argued that the defendant had the information necessary for such valuation. The trial court agreed that the defendant could have valued the assets as of July, 2008, but nonetheless found the disclosure of the value of the assets to be adequate. The trial court reasoned that “the evidence supports a finding that the [defendant‘s] earlier disclosure of [the value of his] assets [was] substantially the same as the financial picture at the time the [amendment] was executed.” (Emphasis omitted.) The court then went on to state: “The same, however, cannot be said for the [defendant‘s] failure to adequately disclose his income for the [eighteen months] preceding the execution of the [amendment] in [July] of 2008.” I do not read this to be a finding that the defendant‘s disclosure was inadequate, in the sense that it was not fair and reasonable as required by
Second, Bauer is inapposite. In that case, the factual finding at issue was that “[t]he parties agree to split equally the [husband‘s] . . . pension and annuity 403 (b) plans . . . .” (Internal quotation marks omitted.) Bauer v. Bauer, supra, 308 Conn. 126. The trial court‘s orders, however, failed to address these plans. Id., 127. The trial court subsequently granted the wife‘s motion for clarification and clarified the ambiguity created by the absence of an order addressing the court‘s finding that the parties would split the value of the pension and annuity plans. See id., 127-28. In light of the finding that the husband was to split his pension and annuity plans with the wife, the absence of any order regarding the plans, and the ambiguity created when the two were considered together, we concluded that the husband was indeed aggrieved by the finding. Id., 135-37. In the present case, however, even though the finding might arguably be to the defendant‘s disadvantage, the trial court enforced the premarital agreement. Thus, the defendant was not aggrieved and could not have appealed the trial court‘s finding. See, e.g., Seymour v. Seymour, supra, 262 Conn. 110-11; see also footnote 29 of this opinion.