JON-JAY TILSEN v. MIRIAM E. BENSON
(SC 20664)
Supreme Court of Connecticut
September 5, 2023
Robinson, C. J., and McDonald, D‘Auria, Mullins, Ecker and Alexander, Js.
Argued December 15, 2022
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
Syllabus
The plaintiff appealed from the trial court‘s judgment dissolving his marriage to the defendant, challenging certain of the trial court‘s financial orders and claiming that the trial court had improperly denied his motion to enforce, as a prenuptial agreement, the terms of the parties’ ketubah, which is a contract governing marriage under Jewish law. The parties signed the ketubah shortly before they were married, and it provided in relevant part that the defendant was to be the plaintiff‘s “wife according to the laws of Moses and Israel” and that they “agreed to divorce . . . one another . . . according to Torah law . . . .” After marrying, the plaintiff found employment as a rabbi at a Conservative synagogue in New Haven, where he served for nearly three decades. During that time, the defendant, who was educated and trained as an attorney, worked in the legal and nonprofit fields, but she had not worked as an attorney since 2015. The defendant, however, was the primary caregiver to the parties’ children and had numerous responsibilities in connection with her role as the rabbi‘s wife. After initiating the present dissolution action in 2018, the plaintiff moved for an order confirming that the ketubah was valid and enforceable, and he requested that any asset division and support orders be entered in accordance with Hebrew law based on the ketubah‘s choice of law provision. According to the plaintiff, application of such law would result in an equal division of marital property, excluding individual property acquired through a gift or bequest not specifically conveyed to the other spouse, and would preclude alimony or claims against future income. In connection with the plaintiff‘s motion, the parties submitted conflicting affidavits from various rabbis about alimony and property division under Torah law. The trial court denied the plaintiff‘s motion. Applying the neutral principles of law approach to determine whether a civil court may consider a claim implicating a religious institution or practice without violating the establishment clause of the first amendment to the United States constitution, which was articulated by the United States Supreme Court in Jones v. Wolf (443 U.S. 595), the trial court concluded that the first amendment precluded enforcement of the ketubah‘s provisions. The court reasoned that, in light of the conflicting affidavits, enforcement of the provisions of the ketubah would require the court to choose between competing rabbinical interpretations of the requirement that their divorce should accord with Torah law. During the pendency of the dissolution proceedings, the plaintiff, who was five years into a ten year employment contract with the synagogue, renegotiated that contract for a new, one year contract, pursuant to which he was to receive a total annual compensation package of $202,100. The synagogue, however, later informed the plaintiff that it would not be renewing his one year contract, which terminated in August, 2021. The plaintiff did not search for or intend to seek new employment. In dissolving the parties’ marriage, the trial court issued several financial orders. The court found, inter alia, that the plaintiff‘s annual gross earning capacity was $202,100, which was consistent with his most recent compensation from the synagogue. In light of that and other findings, the trial court ordered the plaintiff to pay the defendant alimony in the amount of $5000 per month for a period of fifteen years and precluded him from seeking a modification based on the defendant‘s increased earnings, unless her annual gross earnings equaled or exceeded $50,000. The court also awarded the plaintiff sole possession and ownership of the marital home and 45 percent of the parties’ retirement accounts, and it allowed the plaintiff to retain his ownership interest in a real estate asset established by his family members but required him to pay the defendant 25 percent of the net, after tax amount of any future distributions that he was to receive from that interest. On the plaintiff‘s appeal, held:
- The plaintiff could not prevail on his claim that the trial court had improperly denied his motion to enforce the provisions of the ketubah on the ground that doing so would violate first amendment to the United States constitution:
- The trial court correctly determined that enforcement of the parties’ ketubah would violate the establishment clause of the first amendment: The establishment clause generally precludes a court from inquiring into religious matters, but, under the neutral principles of law doctrine, civil courts may decide a dispute arising in a religious context so long as the dispute can be resolved solely by a secular legal analysis that does not implicate or is not informed by religious doctrine or practice, and, although a court resolving such a dispute may be required to examine certain religious documents, it must take special care to scrutinize those documents in purely secular terms and not to rely on religious precepts or to resolve a religious controversy. Given the nature of a ketubah, which resembles a contract but embraces complex religious undertones and carries spiritual weight, courts have applied the neutral principles of law doctrine to assess whether the provisions of a ketubah may be given effect in a dissolution proceeding without violating the establishment clause‘s prohibition against inquiring into matters of religious faith and doctrine, and this court, after reviewing the case law from those courts that have addressed the issue, found most instructive those cases that have applied the neutral principles of law doctrine in concluding that the first amendment precludes a civil court‘s enforcement of ketubah provisions similar to those in the parties’ ketubah. In the present case, the parties’ ketubah was facially silent as to each party‘s support obligations in the event of dissolution of their marriage, the trial court would therefore have been required to determine those obligations from external sources concerning Jewish law, and the affidavits submitted by various rabbis on behalf of the parties offered conflicting opinions regarding such law as it pertains to alimony and property division, rendering the present case a paradigmatic example of entanglement that runs afoul of the establishment clause, insofar as the trial court would have been required to discern and enforce what Jewish law requires with respect to property division and financial support upon dissolution if it had given effect to the parties’ ketubah.
- The plaintiff could not prevail on his unpreserved claim that the trial court‘s decision not to enforce the ketubah had violated his rights under the free exercise clause of the first amendment on the ground that it prevented him from divorcing according to Jewish law: In view of the parties’ lack of agreement as to what Jewish law requires in the present case owing to the breadth and vagueness of the language in the parties’ ketubah, the trial court, in making a determination as to what that law requires, would have risked violating the defendant‘s free exercise rights in the name of protecting those of the plaintiff. Moreover, the trial court did not deny the plaintiff access to the court or otherwise exact a penalty in connection with his religious beliefs or practices, but, rather, its decision not to enforce the ketubah simply meant that the parties’ dissolution would be governed by generally applicable principles of Connecticut law, as expressed in the equitable distribution and alimony statutes (
§§ 46b-81 and46b-82 ), and parties who desire specific tenets of their religious beliefs to govern the resolution of their marital dissolution actions remain free to contract for that relief via a properly executed antenuptial, postnuptial, or separation agreement that is specifically worded to express those beliefs in a way that avoids establishment clause concerns under the neutral principles of law doctrine.
- There was no merit to the plaintiff‘s claims that the trial court‘s financial orders were based on a clearly erroneous factual finding regarding his earning capacity and that the trial court had abused its discretion in awarding alimony in the amount of $5000 per month for fifteen years and 25 percent of any future distributions in connection with the plaintiff‘s ownership interest in the real estate asset:
- The trial court‘s finding that the plaintiff had a gross earning capacity of $202,100 was not clearly erroneous: Under appropriate circumstances, a trial court in a marital dissolution action may base its financial awards on a party‘s earning capacity, which is an amount that a person can realistically be expected to earn considering such things as the person‘s vocational skills, employability, age and health, rather than actual earned income, and it is especially appropriate for the court to consider whether a person has wilfully restricted his or her earning capacity to avoid support obligations. In the present case, the trial court‘s decision to base the fifteen year alimony award, at least in part, on the plaintiff‘s earning capacity of $202,100 was supported by the fact that the plaintiff had only recently become unemployed at the time of dissolution, the lack of any evidence as to his inability or efforts to obtain employment, and evidence that he desired to renegotiate the terms of his employment with the synagogue in order to gain an advantage in the pending dissolution action. Moreover, there was evidence of the plaintiff‘s employability, including testimony from the president of the synagogue‘s board of trustees that the synagogue initially had no intention of replacing the plaintiff with another rabbi, and evidence that he had declined an offer from the synagogue that would have allowed him to remain employed in a limited capacity beyond the end of the renegotiated, one year contract. Furthermore, in the absence of evidence concerning the plaintiff‘s reduced employability or earning capacity resulting from his age or the termination of his employment, which the plaintiff failed to proffer, it was reasonable for the trial court to rely on the plaintiff‘s gross compensation for the final year of his employment with the synagogue as reflected in the one year contract, insofar as the plaintiff asked to renegotiate the ten year contract to a one year contract in March, 2020, during the pendency of the parties’ dissolution action, and insofar as the trial court specifically declined to credit his testimony that the reason for doing so was because he believed that it was inappropriate to fix compensation for longer than a one year period given the uncertainties presented at that time by the start of the COVID-19 pandemic.
- The trial court did not abuse its discretion in ordering the plaintiff to pay to the defendant 25 percent of any future distributions stemming from his ownership interest in the real estate asset: Contrary to the plaintiff‘s contention that the distributions from the real estate asset are mere expectancies akin to an inheritance and, thus, not property subject to division under
§ 46b-81 , the parties had stipulated that the distributions from that asset were property subject to equitable distribution, and the trial court‘s award of 25 percent of those distributions to the defendant was consistent with the present division method of deferred distribution, pursuant to which the trial court determines at the time of trial the percentage share of the nonliquid assets to which each spouse is entitled, and that award was not an abuse of discretion when it was viewed in the context of the court‘s other financial orders. - The trial court did not improperly based its alimony award on the plaintiff‘s gross earning capacity rather than on his available net income: Although it is well settled that a court must base child support and alimony awards on the available net income of the parties, and not on gross income or gross earning capacity, this court concluded that a trial court‘s failure to state explicitly that an award has been based on net income, or its reference to a party‘s gross income or gross earning capacity, does not, in and of itself, require reversal if the trial court‘s decision reasonably can be understood to base the award or awards on net income, and that conclusion was consistent with the maxim that reviewing courts should presume that the trial court has exercised its discretion in accordance with the governing law. In the present case, the trial court‘s only specific finding as to the plaintiff‘s earning capacity was expressed in terms of gross earning capacity, but the court expressly referred to the plaintiff‘s net weekly income as being accurately reflected in the plaintiff‘s financial affidavit, the court did not expressly state that the gross amount rather than the net amount furnished the basis for the alimony calculation, and, although it would have been better practice for the trial court to make an express finding with respect to the plaintiff‘s net earning capacity, this court could not conclude that the court‘s exercise of its discretion was based on a misstatement of the law. Moreover, this court‘s application of the presumption that the trial court exercised its discretion in accordance with the governing law was supported by the arithmetic underlying the trial court‘s financial orders, as the alimony award of $5000 per month constituted approximately 37 percent of the plaintiff‘s net annual earning capacity, as calculated from the net weekly income reported in the plaintiff‘s financial affidavit, and that percentage did not indicate an abuse of discretion relative to the earning capacity on which it was based.
- The trial court‘s alimony award was not an abuse of discretion when the award was viewed in light of the plaintiff‘s ability to pay and the defendant‘s earning capacity: The alimony award was consistent with the trial court‘s express reliance on the reduced earning capacity of the defendant, who was earning $12 per hour at a part-time job at the time of trial, relative to that of the plaintiff, the court declined to credit expert testimony that the defendant had a much higher earning capacity given her inability to secure professional employment in the legal and nonprofit fields, and the court recognized her contributions to the marriage and the fact that those contributions aided in the plaintiff‘s professional success. Moreover, the parties’ cash assets were split evenly, and the plaintiff received the marital home, 45 percent of the retirement accounts, and 75 percent of the distributions from the real estate asset, and the financial orders did not force the plaintiff to the brink of poverty by stripping him of any means with which to pay them by virtue of a disproportionate division of the marital assets. Furthermore, the trial court expressly recognized that the parties’ financial circumstances might evolve and emphasized that the alimony award was subject to modification if her yearly gross earnings were to equal or exceed $50,000.
Argued December 15, 2022-officially released September 5, 2023
Procedural History
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the defendant filed a cross complaint; thereafter, the court, Klau, J., denied the plaintiff‘s motion to enforce the parties’ prenuptial agreement; subsequently, the court, Goodrow, J., rendered judgment dissolving the marriage and granting certain other relief, from which the plaintiff appealed. Affirmed.
Sarah E. Murray, with whom was Eric J. Broder, for the appellee (defendant).
Opinion
ROBINSON, C. J. The principal issue in this appeal requires us to consider the extent to which a Connecticut court may enforce the terms of a “ketubah,” which is a contract governing marriage under Jewish law,1 without entangling itself in religious matters in violation of the first amendment to the United States constitution. The plaintiff, Jon-Jay Tilsen, appeals2 from the judgment of the trial court dissolving his marriage to the defendant, Miriam E. Benson. On appeal, the plaintiff contends that the trial court improperly (1) denied his motion
The record reveals the following facts and procedural history. The parties met in Israel in 1988 and were married the next year in Pennsylvania on December 3, 1989. Their wedding ceremony was conducted in accordance with the Jewish tradition. Shortly before the marriage ceremony, in the presence of two witnesses, the parties signed their ketubah, which is a traditional Jewish marriage contract written in Hebrew and Aramaic.4
Based on the irretrievable breakdown of the parties’ relationship with no possibility of reconciliation, the plaintiff brought this marital dissolution action in 2018.
In the second amended complaint, the plaintiff sought, among other financial and custody orders, the enforcement of the parties’ ketubah as a premarital agreement dated December 3, 1989. The plaintiff subsequently moved for “an order confirming that the parties’ December 3, 1989 prenuptial agreement is valid and enforceable and [that] the parties’ asset division and support award orders should be entered according to Hebrew law based on the valid choice of law clause found in the parties’ ketubah.” In that motion, which included proposed financial orders, the plaintiff argued that enforcement of the ketubah, and the application of Jewish law, would result in an equal division of marital property, excluding individual property acquired through gift or bequest not specifically conveyed to the other spouse, with no alimony or claims against future income. The defendant filed an objection to the plaintiff‘s motion to enforce the ketubah.
After a hearing, the trial court, Klau, J., denied the plaintiff‘s motion to enforce the ketubah.5 In its memorandum of decision, the court assumed, “without deciding, that the ketubah is otherwise a valid prenuptial agreement under Connecticut law,” and it applied the “neutral principles of law” doctrine as articulated in, for example, Jones v. Wolf, 443 U.S. 595, 602-604, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979), and Thibodeau v. American Baptist Churches of Connecticut, 120 Conn. App. 666, 674, 994 A.2d 212, cert. denied, 298 Conn. 901, 3 A.3d 74 (2010), to conclude that the first amendment precluded enforcement of the ketubah provision on which the plaintiff relied in support of a 50/50 division of marital property and relief from an obligation to pay alimony to the defendant. That provision states in relevant part that the parties “agreed to divorce [or, separate from] one another according to custom all the days of their life [i.e., as a continuing
approach forbids a court to do” under the first amendment.6 Accordingly, the trial court denied the plaintiff‘s motion to enforce the ketubah.
Subsequently, the case was tried to the court, Goodrow, J., over multiple days.7 The trial court found that both parties were unemployed at the time of trial, that the plaintiff‘s then gross yearly earning capacity was $202,100, which was consistent with his final compensation from the synagogue, and that the defendant‘s then “gross weekly earning capacity [was] $480,” which reflected her ability to secure nonprofessional, full-time employment at a wage of $12 per hour. Given those findings, which are set forth in detail in part II of this opinion, the trial court considered the statutory factors set forth in
I
We begin with the plaintiff‘s claim that the trial court improperly denied his motion to enforce the ketubah. The plaintiff argues that (1) enforcement of the ketubah would not violate the establishment clause of the first amendment, and (2) failing to enforce the ketubah would violate his rights under the free exercise clause of the first amendment.
By way of background, this appeal concerns the religion clauses of the first amendment to the United States constitution, which provides in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”
and sound view of the relations of church and state under our system of laws,” that civil courts are to defer to religious authorities on “questions of [church] discipline, or of faith, or ecclesiastical rule, custom, or law“), with Kedroff v. Saint Nicholas Cathedral of the Russian Orthodox Church in North America, 344 U.S. 94, 115-16, 73 S. Ct. 143, 97 L. Ed. 120 (1952) (constitutionalizing principle from Watson after recognizing that it had been decided without express reference to first amendment). “A brief overview of the religion clauses of the first amendment as they [apply] to the present case may be helpful. The first amendment to the United States constitution protects religious institutions from governmental interference with their free exercise of religion.” (Footnote omitted; internal quotation marks omitted.) Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn. App. 670-71. “The first amendment [also] prohibits the excessive entanglement of government and religion.” Board of Education v. State Board of Education, 243 Conn. 772, 783, 709 A.2d 510 (1998). “[T]he first amendment has been interpreted broadly to severely [circumscribe] the role that civil courts may play in resolving . . . disputes concerning issues of religious doctrine and practice. . . . Under both the free exercise clause and the establishment clause, the first amendment prohibits civil courts from resolving disputed issues of religious doctrine and practice.” (Citation omitted; internal quotation marks omitted.) Thibodeau v. American Baptist Churches of Connecticut, supra, 671. “Under [the] excessive entanglement analysis . . . claims requiring courts to review and to interpret religious doctrine and practices are barred by the first amendment.” (Internal quotation marks omitted.) Id.; see Serbian Eastern Orthodox Diocese of the United States & Canada v. Milivojevich, 426 U.S. 696, 697-98, 721-23, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976) (holding that first amendment barred judicial consideration of bishop‘s wrongful discharge claim).
Before turning to the plaintiff‘s specific first amendment claims with respect to the enforceability of the ketubah in this case, we observe that they present questions of law over which our review is plenary. See, e.g., Lafferty v. Jones, 336 Conn. 332, 352-53, 246 A.3d 429 (2020), cert. denied, U.S. , 141 S. Ct. 2467, 209 L. Ed. 2d 529 (2021).
We begin with the plaintiff‘s establishment clause claims. He argues that enforcement of the ketubah would not violate the establishment clause of the first amendment because it contains nothing more than a choice of law provision that is enforceable under the “neutral principles of law” analysis articulated by the United States Supreme Court in Jones v. Wolf, supra, 443 U.S. 602-604. Relying on, for example, In re Marriage of Goldman, 196 Ill. App. 3d 785, 554 N.E.2d 1016, appeal
denied, 132 Ill. 2d 544, 555 N.E.2d 376 (1990) (Goldman), Minkin v. Minkin, 180 N.J. Super. 260, 434 A.2d 665 (Ch. Div. 1981), and Avitzur v. Avitzur, supra, 58 N.Y.2d 108, the plaintiff contends that Jewish law governing marriage is secular in nature, thus permitting a court to apply it without having to review or interpret religious doctrine in a way that would violate the first amendment. Citing Light v. Light, supra, 55 Conn. L. Rptr. 145, the plaintiff observes that our Superior Court has applied Jewish law in conjunction with dissolution judgments by enforcing a ketubah provision imposing a monetary penalty on a husband until he granted the wife a “get,” or a Jewish religious divorce. See id., 146, 149 and n.1.
In response, the defendant argues that the trial court correctly determined that enforcing the ketubah, as desired by the plaintiff, would violate the establishment clause by entangling the trial court in religious matters. The defendant contends that the ketubah cannot be enforced under the neutral principles of law doctrine because, given the “vastly conflicting” interpretations of Torah law governing marriage and divorce proffered by the parties, issuing the financial orders “would require the court to apply religious doctrine and practices and [to] inquire into religious matters . . . .” Relying on, for example, Victor v. Victor, 177 Ariz. 231, 866 P.2d 899 (App. 1993), review denied, Arizona Supreme Court (February 1, 1994), and Aflalo v. Aflalo, 295 N.J. Super. 527, 685 A.2d 523 (Ch. Div. 1996), the defendant emphasizes that “[d]istinguishing between Torah law that is religious and Torah law that is secular is inherently a question of religious law that civil courts cannot decide without running afoul of the establishment clause” because, “[i]n order to . . . make such a determination, a civil court would be required to analyze Jewish law and potentially to decide between differing interpretations of Jewish law . . . .” The defendant further contends that the cases on which the plaintiff relies, in which the husband was ordered to perform a specific act, such as appearing before a “Beth Din” (a Jewish tribunal) or issuing a get; see In re Marriage of Goldman, supra, 196 Ill. App. 3d 787, 791; Minkin v. Minkin, supra, 180 N.J. Super. 261; Avitzur v. Avitzur, supra, 58 N.Y.2d 112-13; are distinguishable because the parties’ obligations under Jewish law were facially clear from the ketubah or otherwise were not disputed. We agree with the defendant and conclude that the trial court correctly determined that enforcement of the ketubah in this case would violate the establishment clause of the first amendment.
The establishment clause‘s preclusion against inquiring into religious matters has been described broadly as the “ecclesiastical abstention doctrine“; McRaney v. North American Mission Board of the Southern Baptist Convention, Inc., 966 F.3d 346, 348 (5th Cir. 2020), cert. denied, U.S. , 141 S. Ct. 2852, 210 L. Ed. 2d 961
(2021); and it was first articulated by the United States Supreme Court
In considering whether a civil court may consider a claim implicating a religious institution or practice without violating the establishment clause, courts often apply the “neutral principles of law” doctrine articulated by the United States Supreme Court in Jones v. Wolf, supra, 443 U.S. 602-604, which, like Watson, was a church property dispute. Under the neutral principles approach, a court resolving a dispute arising in a religious context may be required “to examine certain religious documents, such as a church constitution,” but “must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts” or “to resolve a religious controversy . . . .” Id., 604. This court has concluded that “the neutral principles of law approach is preferable [to the hierarchical approach of Watson v. Jones, supra, 80 U.S. 725-27], because it provides the parties with a more level playing field, and the outcome in any given case is not preordained in favor of the general church, as happens in practice under the hierarchical approach. Moreover, as the court explained in Jones [v. Wolf, supra, 603], the neutral principles approach is completely secular and relies exclusively on objective, well established concepts of trust and property law familiar to lawyers and judges.” (Internal quotation marks omitted.) Episcopal Church in the Diocese of Connecticut v. Gauss, supra, 302 Conn. 429; see Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn. App. 673-74; see also Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449-50, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969) (relying on neutral principles of law approach in concluding that “[t]he departure-from-doctrine element of the implied trust theory” under Georgia law of property dispute resolution violated first amendment). Put differently, the neutral principles of law doctrine permits civil courts to decide disputes arising in religious contexts, so long as they may be resolved solely by a secular legal analysis that does “not implicate or [is] not informed by religious doctrine or practice.” Thibodeau v. American Baptist Churches of Connecticut, supra, 674.
In addition to tort, property, and employment cases,9 the broad first amendment preclusion against inquiring
into matters of religious faith and doctrine has been applied in the family law context. Courts have applied the neutral principles of law doctrine to assess the permissibility of a desired remedy under the first amendment, including whether the provisions of a Jewish couple‘s ketubah may constitutionally be given effect in a civil proceeding to dissolve the couple‘s marriage. This constitutional question is inherent in the nature of the ketubah because, although it “resembles a contract in many ways, its formation and impact sport complex religious undertones. The [k]etubah defines a husband‘s marital estate and child support obligations, but its role in a sanctified marriage process gives it spiritual weight. Although some clauses are reminiscent of a prenuptial agreement, anachronistic wording and allegiance to the [law] of Moses
The leading case on this point-and the only one from a state high court-is the decision of the New York Court of Appeals in Avitzur v. Avitzur, supra, 58 N.Y.2d 108. Although the parties in Avitzur had previously obtained a civil divorce judgment, a woman “is not considered divorced and may not remarry pursuant to Jewish law, until such time as a Jewish divorce decree, known as a ‘[g]et‘, is granted. In order that a [g]et may be obtained [the husband and wife] must appear before a ‘Beth Din,’ a rabbinical tribunal having authority to advise and pass [on] matters of traditional Jewish law.”10 Id., 112. The wife in Avitzur “sought to summon [the husband] before the Beth Din pursuant to the provision of the [k]etubah recognizing that body as having authority to counsel the couple in the matters
concerning their marriage.” Id.. The husband “refused to appear before the Beth Din, thus preventing [the wife] from obtaining a religious divorce.” Id.. The wife then brought an action for breach of contract, claiming that “the [k]etubah constitutes a marital contract, which [the husband had] breached by refusing to appear before the Beth Din,” and seeking “specific performance of the [k]etubah‘s requirement that he appear before the Beth Din.” Id.. The majority of the New York Court of Appeals concluded that the parties, “in signing the [k]etubah, [had] entered into a contract [that] formed the basis for their marriage,” with “the terms of this marital contract” obligating the husband, “at [the wife‘s] request, [to] appear before the Beth Din for the purpose of allowing that tribunal to advise and counsel the parties in matters concerning their marriage, including the
The majority in Avitzur then rejected the husband‘s argument that “enforcement of the terms of the [k]etubah by a civil court would violate the constitutional prohibition against excessive entanglement between church and [s]tate, because the court must necessarily intrude [on] matters of religious doctrine and practice. It [was] urged that the obligations imposed by the [k]etubah arise solely from Jewish religious law and can be interpreted only with reference to religious dogma.” Id., 114. Acknowledging “the religious character of the [k]etubah“; id.; the majority applied the neutral principles of law approach from Jones v. Wolf, supra, 443 U.S. 602-603, and concluded that the first amendment “permit[ted] judicial involvement to the extent that [enforcement of the ketubah could] be accomplished in purely secular terms.” Avitzur v. Avitzur, supra, 58 N.Y.2d 115. The court held that “the relief sought by [the wife was] simply to compel [the husband] to perform a secular obligation to which he contractually bound himself. In this regard, no doctrinal issue need[ed] [to] be [addressed], no implementation of a religious duty [was] contemplated, and no interference with religious authority [would] result. Certainly nothing the Beth Din [could] do would in any way affect the civil divorce. To the extent that an enforceable promise [could] be found by the application of neutral principles of contract law, [the wife would] have demonstrated entitlement to the relief sought.” Id.. The court emphasized that “[c]onsideration of other substantive issues bearing [on the wife‘s] entitlement to a religious divorce . . . [was] appropriately left to the forum the parties chose for resolving the matter.” Id., 115-16.
We agree with the Avitzur majority that, in principle,
parties should be permitted to elect to have dissolution disputes arbitrated in an alternative forum, albeit one that is religious in orientation, in situations in which it is possible to enforce such an agreement without “[c]onsideration of other substantive issues bearing [on an] entitlement to a religious divorce . . . .” Id., 115. Avitzur, however, was a 4-3 decision of the New York Court of Appeals; id., 121; and, on the whole, we find more persuasive the dissenting opinion in Avitzur, which deemed it impossible for a court to disentangle secular from religious considerations in adjudicating the dispute at hand. See id., 118-19 (Jones, J., dissenting). The dissent agreed that the inquiry was governed by the neutral principles of law doctrine but ultimately disagreed with the majority‘s conclusion that, on the specific facts of that case, “courts may discern one or more discretely secular obligations [that] may be fractured out of the ‘[k]etubah,’ indisputably in its essence a document prepared and executed under Jewish law and tradition.” Id., 116 (Jones, J., dissenting). The dissent determined that “even a definition of the purported ‘secular obligation,‘” namely, to appear before the Beth Din, “requires an examination into the principles and practice of the Jewish religion,” especially given the parties’ apparent disagreement as to the scope of the
For the same reason, we disagree with the decision of the Illinois Court of Appeals in Goldman, on which the plaintiff relies heavily in this case. See In re Marriage of Goldman, supra, 196 Ill. App. 3d 785. In Goldman, the Illinois court upheld a trial court‘s order requiring a husband to take the steps necessary to provide his wife with a get in connection with their civil divorce. See id., 791-95, 797. In Goldman, the parties’ ketubah was similar to the ketubah in the present case, insofar as it provided that the marriage would be “according to the law[s] of Moses and Israel,” without specifically addressing the topic of dissolution in any way. Id., 787; see footnote 4 of this opinion. Despite this vague language, the Illinois court deferred to the trial court‘s factual finding that the parties intended the ketubah to be a contract to govern their marriage
according to Orthodox Jewish law, rather than to serve “merely as poetry or art in connection with the marriage ceremony.” In re Marriage of Goldman, supra, 792. The court also noted the uncontradicted testimony of two Orthodox Jewish rabbis that Jewish law required the husband to grant the wife a get in the event of divorce and that that process was “secular rather than religious in nature” as a matter of Jewish law. Id., 790; see id., 793-94. The court relied on, among other cases, Avitzur v. Avitzur, supra, 58 N.Y.2d 108; see In re Marriage of Goldman, supra, 795; and concluded that ordering the husband to provide a get was consistent with the neutral principles of law doctrine because it had “the secular purpose of enforcing a contract between the parties” and expedited the resolution of the civil divorce proceedings, insofar as, “[w]ithout the get, [the wife] was prohibited by her religious beliefs from remarrying. It would have been detrimental to the parties and their children to leave the get issue unresolved.” Id., 794. Particularly given the reliance
Thus, we find more instructive those cases that have applied the neutral principles of law doctrine to conclude that the first amendment precludes a civil court‘s enforcement of ketubah provisions similar to those in the present case. For example, in Victor v. Victor, supra, 177 Ariz. 231, the parties had entered into a ketubah, similar to the one in the present case, which provided in relevant part that “the parties will comply with the ‘laws of
supra, 233. Analyzing the ketubah as an antenuptial agreement, the court concluded that “the only specific provisions in the ketubah relate[d] to financial obligations” and rejected the wife‘s reliance on its “language that the parties [would] comply with the ‘laws of Moses and Israel.‘” Id., 234. The court held that “[s]uch a vague provision has no specific terms describing a mutual understanding that [the] husband would secure a Jewish divorce. . . . If [the] court were to rule on whether the ketubah, given its indefinite language, includes an unwritten mandate that a husband under these circumstances is required to grant his wife a get, [the court] would be overstepping [its] authority and assuming the role of a religious court. This [the court] decline[d] to do. [The court held] . . . as a matter of law, [that] the ketubah [did] not constitute an enforceable antenuptial agreement.”13 (Citation omitted.) Id..
A New Jersey trial court decision, Aflalo v. Aflalo, supra, 295 N.J. Super. 527, is similarly instructive. In that case, the husband sought to compel the wife to appear before a Beth Din to facilitate their potential reconciliation, and the wife sought an order directing the husband to provide her with a get. Id., 530-31. Citing the United States Supreme Court‘s decision in Serbian Eastern Orthodox Diocese of the United States & Canada v. Milivojevich, supra, 426 U.S. 696, the court disagreed with an earlier New Jersey trial court decision, Minkin v. Minkin, supra, 180 N.J. Super. 263-66, ordering a husband to provide his wife with a get, on which the plaintiff relies in the present case. See Aflalo v. Aflalo, supra, 538; see also footnote 13 of this opinion. The court in Aflalo deemed the court‘s “conclusion [in Minkin] that an order requiring the husband to provide a ‘get’ is not a religious act [and does not involve] the court in the religious beliefs or practices of the parties [to be] not at all convincing. It is interesting that the court [in Minkin] was required to choose between the conflicting testimony of the various rabbis to reach this conclusion. The one way in which a court may become entangled in religious affairs, which the court in Minkin did not recognize, was in becoming an arbiter of what is ‘religious.‘” (Emphasis added; footnote omitted.) Aflalo v. Aflalo, supra, 538. The court in Aflalo also rejected the conclusion that the enforcement of the ketubah “concerned purely civil issues” because the prohibition on remarrying without a get affects only a desire to marry another Jewish person, meaning that the order of a get “directly affected the religious beliefs of the parties. By entering the order, the court empowered the wife to remarry in accordance
to review wife‘s claim that Beth Din order obtained by husband, “which allowed him to remarry without first giving the wife a ‘get,‘” did not comply with New York statute that “prevent[s] the husband in the case of a Jewish divorce from using the denial of a ‘get’ as a form of economic coercion in a civil divorce action,” because that claim “would require the court to review and interpret religious doctrine and [to] resolve the parties’ religious dispute, which the court [was] proscribed from doing under the [f]irst [a]mendment entanglement doctrine“).
Turning to the record in the present case, we conclude that the plaintiff‘s desired relief violates the establishment clause under the neutral principles of law doctrine. Most significant, the parties’ ketubah is facially silent as to each spouse‘s support obligations in the event of dissolution of the marriage, thus leaving the court to determine those obligations from external sources as to Jewish law, namely, the parties’ expert witnesses, whose proffered opinions differed in this case, instantly alerting the court as to the establishment clause dilemma. This renders the present case distinct from Avitzur, in which-under the majority‘s view of the record-the contested portion of the ketubah was more akin to a typical arbitration clause, insofar as it facially required only the submission of the case to the specific Beth Din and did not require the court to discern and enforce what Jewish law requires with respect to property division and financial support upon dissolution. See Avitzur v. Avitzur, supra, 58 N.Y.2d 113-15. Making that determination, especially in the presence of conflicting rabbinical opinions, would render this case a textbook entanglement into religious matters, right to the threshold question of whether those obligations are indeed “religious” in the first instance. See Victor v. Victor, supra, 177 Ariz. 234; Aflalo v. Aflalo, supra, 295 N.J. Super. 538-40; Sieger v. Sieger, supra, 37 App. Div. 3d 586-87; see also Davis v. Scher, 356 Mich. 291, 302-304, 97 N.W.2d 137 (1959) (applying express trust doctrine to resolve property dispute between factions of Orthodox Jewish congregation on basis of uncontroverted evidence at trial that “the teaching of Orthodox Judaism” precludes mixed gender seating); Fisher v. Congregation B‘nai Yitzhok, 177 Pa. Super. 359, 363-65, 110 A.2d 881 (1955) (deferring to findings of trial court “that the parties contracted on the common understanding that the defendant was an [O]rthodox synagogue [that] observed the mandate of the Jewish law as to separate [gender] seating” during High Holiday
B
We next address the plaintiff‘s claim that the trial court‘s decision not to enforce the ketubah violated his rights under the free exercise clause of the first amendment because it prevented him from divorcing according to Jewish law, as the parties had agreed. Relying on Espinoza v. Montana Dept. of Revenue, U.S. , 140 S. Ct. 2246, 207 L. Ed. 2d 679 (2020), and Trinity Lutheran Church of Columbia, Inc. v. Comer, U.S. , 137 S. Ct. 2012, 198 L. Ed. 2d 551 (2017), the plaintiff also argues that the trial court violated his free exercise rights by denying him a generally available benefit, namely, the enforcement of a prenuptial agreement, as a result of the parties’ choice of Torah law to govern that agreement. Citing In re Landis, 5 Ohio App. 3d 22, 23, 448 N.E.2d 845 (1982), in which the trial court enforced a separation agreement providing that the husband would pay for his children‘s tuition at a Christian school, the plaintiff contends that the trial court‘s decision has the effect of using the establishment clause to violate the parties’ freedom of contract and free exercise of religion.
In response, the defendant observes that the plaintiff‘s free exercise claim irreconcilably conflicts with his establishment clause arguments that Jewish law on this point is not religious. The defendant also argues that the plaintiff‘s claim is unpreserved and not reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015),15 because the lack of a finding as to whether the plaintiff‘s position that Torah law should govern the dissolution of his marriage is a “sincerely held” religious belief renders the record inadequate for review. Finally, the defendant contends that, even if we deem his claim reviewable under Golding, there is no violation of a constitutional right because the trial court assumed the validity under Connecticut law of the ketubah as a prenuptial agreement yet determined that enforcing it would have required it to violate the establishment clause by deciding contested issues of religious doctrine. Citing Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, supra, 393 U.S. 449, and Jones v. Wolf, supra, 443 U.S. 606, the defendant also emphasizes that the trial court‘s decision did not preclude the parties from obtaining a religious divorce, or from otherwise negotiating a civil dissolution
The plaintiff‘s free exercise claim implicates the “play in the joints between what the [e]stablishment [c]lause permits and the [f]ree [e]xercise [c]lause compels.” (Inter-
nal quotation marks omitted.) Trinity Lutheran Church of Columbia, Inc. v. Comer, supra, 137 S. Ct. 2019; see, e.g., Everson v. Board of Education, supra, 330 U.S. 3, 16 (rejecting establishment clause challenge to state law enabling school district to reimburse parents for transportation costs for sending children to public and private schools, including parochial schools, because barring use of transportation funds for parochial schools would penalize those parents for exercise of their faith). “The [f]ree [e]xercise [c]lause protect[s] religious observers against unequal treatment and subjects to the strictest scrutiny laws that target the religious for special disabilities based on their religious status. . . . Applying that basic principle, [the United States Supreme] Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order.” (Citation omitted; internal quotation marks omitted.) Trinity Lutheran Church of Columbia, Inc. v. Comer, supra, 2019. “The [f]ree [e]xercise [c]lause protects against indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” (Internal quotation marks omitted.) Id., 2022. “[T]he liberties of religion and expression may be infringed by the denial of or placing of conditions [on] a benefit or privilege.” (Internal quotation marks omitted.) Id.; see Espinoza v. Montana Dept. of Revenue, supra, 140 S. Ct. 2261 (Montana constitution‘s categorical ban on use of state supported educational scholarship funds for religious schools violated free exercise rights of both religious schools and families who desired to have their children attend them); Trinity Lutheran Church of Columbia, Inc. v. Comer, supra, 2024-25 (concluding that free exercise clause barred Missouri constitution‘s categorical exclusion of otherwise qualified church operated schools and day care centers from eligibility for state grant funds for playground resurfacing). When the United States Supreme Court “has rejected free exercise challenges, the laws in question have been been neutral and generally applicable without regard to religion. [It has] been careful to distinguish such laws from those that single out the religious for disfavored treatment.” Trinity Lutheran Church of Columbia, Inc. v. Comer, supra, 2020; see, e.g., Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872, 874, 877-78, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990) (Native American church members were not entitled to dispensation from generally applicable criminal narcotics laws).
Taking into account the plaintiff‘s sincerely held religious beliefs for purposes of the first prong of State v. Golding, supra, 213 Conn. 239-40, we conclude that he has failed to prove that the trial court‘s decision not to enforce the ketubah penalized his free exercise rights, causing his unpreserved claim to fail under the third
prong of Golding. See footnote 15 of this opinion. Particularly in view of the parties’ lack of agreement as to what Jewish law requires in the present case given the breadth of the ketubah‘s language, making this determination as to the
Second, the trial court did not deny the plaintiff access to the court or otherwise exact some kind of penalty in connection with his religious beliefs or practices; its decision simply meant that this dissolution action would be governed by generally applicable principles of Connecticut law as expressed in our alimony and equitable distribution statutes. Parties who desire specific tenets of their religious beliefs to govern the resolution of marital dissolution actions remain free to contract for that relief via a properly executed antenuptial, postnuptial, or separation agreement that is specifically worded to express those beliefs in a way that avoids establishment clause concerns under the neutral principles of law doctrine.16 Compare In re Landis, supra, 5 Ohio App. 3d 28 (concluding that “enforcement of a separation agreement, supported by consideration, between the parents of a minor child, requiring the noncustodial parent to pay tuition for [the child‘s] attendance at a religiously oriented school, either specified in the agreement or selected by the custodial parent, violates neither the [e]stablishment [c]lause nor the [f]ree [e]xercise [c]lause of the [f]irst [a]mendment“), with Ball v. Ball, supra, 250 Ariz. 279-81 (trial court violated first amendment by hearing evidence, including testimony from ministers and documentary evidence comparing religious tenets, to decide whether father‘s Mormon religion was “part of the Christian
faith” for purposes of assessing compliance with parenting plan). We conclude, therefore, that the trial court‘s denial of the plaintiff‘s motion to enforce the ketubah did not violate his rights under the free exercise clause of the first amendment. Accordingly, the trial court properly denied the plaintiff‘s motion to enforce the ketubah.II
We next address the plaintiff‘s challenges to the trial court‘s financial orders. The record reveals the following additional facts, as found by the trial court, and procedural history relevant to these claims. The parties have lived separately since 2019; the plaintiff remains in the marital home in New Haven, while the defendant resides in a rental apartment. At the time of dissolution, the plaintiff was fifty-nine years old and was “educated, trained, and employed as a rabbi.” The plaintiff had held the same position as a rabbi at a Conservative synagogue in New Haven for nearly twenty-eight years. While trial was pending, in March, 2020, he renegotiated his prior, ten year employment contract, which commenced on July 1, 2015 (2015 contract), with a termination date of August 14, 2025. The 2015 contract set a similarly structured schedule of compensation over the first five years of the term and provided that the plaintiff and the synagogue would commence negotiations with respect to compensation for the second five years of that term by June 15, 2019, and complete them by December 31, 2019. During the pendency of trial, the plaintiff renegotiated the 2015 contract for a new, one year contract (2020 contract), with a termination date of August, 2021. His total compensation under the 2020 contract was $202,100, which was divided into components for base salary, parsonage payment, retirement benefits, and medical insurance payments. The plaintiff had “complete control over the various components” of his compensation and could “reallocate” them as he desired.17 The plaintiff received no compensation for giving up the last five years of the 2015 contract. In January, 2021, the board of directors of the synagogue informed the plaintiff that it would not renew the one year 2020 contract because he had refused to address certain concerns of the congregation with respect to ritual observances during the COVID-19 pandemic that the board had identified in a survey. The plaintiff has not searched for new employment and does not intend to seek further employment. The trial court found that this conduct demonstrated “an effort by the
With respect to the defendant, the trial court found that, at the time of dissolution, she was sixty-one years old and was “educated and trained as an attorney.” The defendant was unemployed at the time of trial and had not worked as an attorney since 2015. The trial court found that, despite her “extraordinary efforts” to find employment, the defendant had been unsuccessful and continued to receive “unemployment compensation and [to earn] minimal funds as an infrequent babysitter.” The trial court found that the defendant had been very supportive of the plaintiff during their marriage, as she was “the main caregiver responsible for raising the parties’ [four] children” and also assumed numerous social and educational duties in her capacity as the “rabbi‘s wife,” which “greatly enhanced the plaintiff‘s standing within the religious community, and his financial success in his long-term employment as a rabbi.” Observing that she carried out this role for approximately twenty-four years “without compensation for the duties she performed,” the trial court found that these “volunteer efforts increased the earning capacity of the [plaintiff] at the expense of the defendant‘s own earning capacity. Rather than perform all of the duties of the rabbi‘s wife . . . without pay, [the defendant] could have been devoting her time and efforts to her own career as an attorney or as an administrator with a nonprofit entity.” Accordingly, the trial court “reject[ed] the plaintiff‘s testimony that the defendant, in essence, did not contribute to the plaintiff‘s career as a rabbi.” Crediting “some, but not all,” of the testimony of Jeffrey D. Joy, a vocational rehabilitation counselor presented as an expert witness by the plaintiff, the trial court found that the defendant‘s “gross weekly earning capacity [was] $480,” which reflected her ability to secure nonprofessional, full-time employment at a wage of $12 per hour.18
Given those findings, the trial court considered the statutory factors set forth in
Turning to property division, the trial court awarded the plaintiff sole possession and ownership of the marital home in New Haven, which it valued at $273,500.19 The
With respect to the parties’ various financial accounts, the trial court evenly divided the parties’ bank and brokerage accounts. The court also awarded the defendant 55 percent and the plaintiff 45 percent of the parties’ various retirement accounts. The court ordered that a Bank of America financial liability listed on the defendant‘s financial affidavit be paid equally by both parties. Finally, the court ordered that existing college savings accounts created for the benefit of the parties’ two older children be used toward the educational expenses of the remaining minor child, and ordered the plaintiff to pay 75 percent, and the defendant 25 percent, of any remaining postmajority educational expenses up to the “University of Connecticut cap” amount provided by
Before turning to the plaintiff‘s specific challenges to the financial orders, we observe that the “standard of review in family matters is well settled. An appellate court will not disturb a trial court‘s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . It is within the province of the trial court to find facts and draw proper inferences from the evidence 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. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . 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.” (Internal quotation marks omitted.) Powell-Ferri v. Ferri, 326 Conn. 457, 464, 165 A.3d 1124 (2017).
Further, “[w]e have repeatedly recognized that [i]n determining the assignment of marital property under
Accordingly, we now turn to the plaintiff‘s claim that the financial orders are (1) based on a clearly erroneous factual finding as to his earning capacity, and (2) an abuse of discretion, insofar as the trial court awarded the defendant alimony in the amount of $5000 monthly for a fifteen year period and 25 percent of any future Westview distributions.
A
We begin with the plaintiff‘s claim that the trial court‘s financial orders are based on a clearly erroneous factual finding, namely, that he has a gross “earning capacity of $202,100 for fifteen years.” Citing, among other cases, Weinstein v. Weinstein, 280 Conn. 764, 911 A.2d 1077 (2007), the plaintiff contends that there was no evidence regarding his employability and likely future compensation following the synagogue‘s decision not to renew his employment contract. The plaintiff further argues that the trial court incorrectly found that he had voluntarily terminated his employment contract through the year 2025 without consideration insofar as it lacked terms of compensation, rendering it unenforceable. The plaintiff also argues that, when the trial court found that the defendant‘s age is “a substantial limiting factor in her ability to obtain professional employment,” it erroneously failed to make a coordinate finding regarding the plaintiff‘s “ability to obtain employment in light of his age,” which is only two years less than that of the defendant.
In response, the defendant cites Schmidt v. Schmidt, 180 Conn. 184, 429 A.2d 470 (1980), Boyne v. Boyne, 112 Conn. App. 279, 962 A.2d 818 (2009), and Hart v. Hart, 19 Conn. App. 91, 561 A.2d 151, cert. denied, 212 Conn. 813, 565 A.2d 535 (1989), and argues that the trial court properly used the plaintiff‘s final gross compensation in the amount of $202,100 as a basis for its finding as to his earning capacity, particularly given the trial court‘s “explicit” discrediting of his testimony and its finding that he had made efforts to diminish his earnings in an attempt to influence his anticipated alimony obligation. Noting that the plaintiff did not raise issues concerning the enforceability of his contract at trial, the defendant emphasizes that there was ample evidence of the plaintiff‘s future employability, including the efforts of the synagogue to engage in a routine renegotiation of his compensation under the 2015 contract, which would have kept him employed through 2025 had he not “maneuvered out
In considering the statutory factors governing alimony, child support, and the equitable distribution of marital property; see
We conclude that the trial court‘s finding that the plaintiff had a gross earning capacity of $202,100, which formed the basis for the fifteen year alimony order, was not clearly erroneous. First, the recency of the plaintiff‘s unemployment, along with the lack of any evidence as to inability or efforts to obtain employment and evidence of his desire to renegotiate the terms of his employment to gain an advantage in this litigation, supports the trial court‘s decision to make an award based on his earning capacity. See Boyne v. Boyne, supra, 112 Conn. App. 282-84 (trial court did not commit clear error in finding that husband had earning capacity of $100,000 per year, even though “he was unemployed at the time of the dissolution, and his average income for the prior three years was approximately $41,000,” because he was licensed electrical engineer, his last annual salary in that position was $100,000, with earnings as high as $127,000, and his unsuccessful ongoing job search did “not necessarily mean that his earning capacity [had] been diminished“); Elia v. Elia, 99 Conn. App. 829, 833-35, 916 A.2d 845 (2007) (trial court did not commit clear error in concluding that
Indeed, evidence of the plaintiff‘s employability was provided by the testimony of Yaron Lew, the president of the synagogue‘s board of trustees. Lew testified that the synagogue initially had no intention of replacing the plaintiff; in an email to the plaintiff urging him to begin the compensation renegotiation process under the 2015 contract for the second five years, Lew stated that the board did not anticipate “any issues with the extension of the contract” because the synagogue was “not looking to replace [its] beloved [r]abbi . . . .” Indeed, even after the termination of the 2020 contract, the plaintiff declined an offer that would have allowed him to remain employed beyond the end of the 2020 contract, to lead High Holiday services, and then to receive a farewell celebration of his tenure and service to the synagogue. Further, the plaintiff testified at trial that he was contemplating retirement following the expiration of the 2020 contract in August, 2021, and had not yet initiated a search for a new position.21
Moreover, in the absence of vocational evidence as to his reduced employability or earning capacity resulting from his age or the termination of his employment22—which the plaintiff himself could have, but did not, proffer—the trial court reasonably relied on his total contracted gross compensation of $202,100 from the final year of his employment with the synagogue, commencing on July 1, 2020, and terminating on August 14, 2021, which was allocated across different components, including base salary, retirement benefits, and a parsonage allowance. See footnote 17 of this opinion. Reliance on that final gross amount for earning capacity was supported
B
We next address the plaintiff‘s claims that the trial court abused its discretion in issuing certain financial orders that “have no basis in [his] current financial circumstances,” including orders that he pay the defendant (1) 25 percent of any distributions that he receive from the Westview apartment trust, and (2) alimony in the amount of $5000 per month for fifteen years.23
1
We begin with the plaintiff‘s Westview claims. The plaintiff relies on Bender v. Bender, 258 Conn. 733, 785 A.2d 197 (2001), Bornemann v. Bornemann, 245 Conn. 508, 752 A.2d 978 (1998), and Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987), and contends that the Westview distributions are “mere expectancies,” akin to an inheritance, which is not property subject to division under
Having reviewed the record, we observe that the parties stipulated before trial that, although they disagreed as to the value of the plaintiff‘s interest in Westview,24 they agreed that “the [plaintiff‘s] interest in [Westview was] not directly transferable to the [defendant]” and that, “[w]ith respect to any distributions of any kind that are received by the [plaintiff], the court shall have the right to make a determination as to what portion/percentage of such distributions the [defendant] is entitled. . . . [I]n their respective proposed orders, the [defendant] claim[ed] [that] she [was] entitled to 50 [percent] and the [plaintiff] claim[ed] [that] she [was] entitled to zero.”25 The parties further agreed that, if the court were to order “any sharing of the [Westview] distribution(s) as contemplated herein, the [plaintiff] shall not be ordered to buy out the [defendant‘s] interest in [Westview] as part of the distribution at the time of the divorce; rather, within ten . . . days of the [plaintiff‘s] receipt of any payment/distribution of any kind from [Westview], he shall pay to the [defendant] her appropriate share of such payment/distribution.” According to the plaintiff‘s financial affidavit, at the time of trial, he received income from Westview distributions in the amount of $433 gross weekly, although statements and tax documents concerning his Westview interest indicated that those distributions fluctuated annually in amount.
Given the parties’ stipulation that the Westview distributions are property subject to equitable distribution,26 we
“Under the present division method, the trial court determines at the time of trial . . . the percentage share of the [nonliquid assets] to which the nonemployee spouse is entitled. . . . In other words, the court will declare that, upon maturity, a fixed percentage of the pension be distributed to each spouse.” (Internal quotation marks omitted.) Id., 758; see, e.g., Ingles v. Ingles, 216 Conn. App. 782, 807-10, 286 A.3d 908 (2022) (given absence of evidence as to present value, trial court was not required to calculate present value of pensions when it utilized present division method and ordered each party to retain 100 percent interest in their own pension); Kent v. DiPaola, 178 Conn. App. 424, 440-41, 175 A.3d 601 (2017) (trial court did not improperly fail to credit testimony of husband‘s pension actuary as to present value of pensions because court had discretion to use present division method of valuation and distribution). Thus, viewed in the context of the remainder of the financial orders, the trial court did not abuse its discretion in awarding
2
Finally, we turn to the plaintiff‘s alimony claims. First, citing, among other cases, Greco v. Greco, 275 Conn. 348, 880 A.2d 872 (2005), and Pellow v. Pellow, 113 Conn. App. 122, 964 A.2d 1252 (2009), the plaintiff argues that (1) the alimony award was unduly punitive relative to his limited resources, (2) the award failed to consider his “lack of income after losing the only job he had held for twenty-eight years and his prospects of obtaining comparable employment in the future,” particularly given his age, and (3) the trial court did not adequately explain the justification for its fifteen year duration. The plaintiff also contends that the trial court violated well established case law requiring that the alimony award be based on his available net income, rather than his gross income or earning capacity. See, e.g., Morris v. Morris, 262 Conn. 299, 306, 811 A.2d 1283 (2003); Langley v. Langley, 137 Conn. App. 588, 600-601, 49 A.3d 272 (2012); Cleary v. Cleary, 103 Conn. App. 798, 801-802, 930 A.2d 811 (2007).
In response, the defendant argues that the trial court did not abuse its discretion in issuing the alimony order. First, she relies on the Appellate Court‘s decisions in Fronsaglia v. Fronsaglia, 202 Conn. App. 769, 246 A.3d 1083 (2021), and Leonova v. Leonov, 201 Conn. App. 285, 242 A.3d 713 (2020), cert. denied, 336 Conn. 906, 244 A.3d 146 (2021), in support of the proposition that the trial court‘s failure to expressly state that it considered the plaintiff‘s net income does not mandate reversal, especially given the court‘s express consideration of the statutory factors and the fact that the memorandum of decision indicated that the plaintiff‘s net income was “accurately reflected in [his] financial affidavit.” The defendant then argues that the $5000 monthly award was not an abuse of discretion because there was no evidence that the plaintiff could not find employment commensurate with his earning capacity, and the evidence demonstrated instead that the plaintiff had—at the time of trial—elected not to search for new employment. She also emphasizes that, during the marriage, her supportive and expansive role in the synagogue community as the rabbi‘s wife led to an increase the plaintiff‘s earning capacity “at the expense of her own . . . .” See, e.g., Hornung v. Hornung, 323 Conn. 144, 162, 146 A.3d 912 (2016). Finally, the defendant cites cases such as Watrous v. Watrous, 108 Conn. App. 813, 816, 949 A.2d 557 (2008), and argues that, because the alimony order was approximately 37 percent of the plaintiff‘s net income as consistent with his gross earning capacity, it was not an abuse of discretion in the context of the parties’ thirty year marriage, particularly because it was time limited and modifiable in comparison to the lifetime awards that have been upheld in similar cases. We agree with the defendant and conclude that the trial court did not abuse its discretion in ordering the plaintiff to pay the defendant alimony in the amount of $5000 per month for fifteen years.
a
We begin with the plaintiff‘s contention that the trial court improperly based its alimony award on his gross earning capacity, rather than the net amount. “It is well settled that a court must base child support and alimony orders on the available net income of the parties, not gross income.” Morris v. Morris, supra, 262 Conn. 306; see, e.g., Tobey v. Tobey, 165 Conn. 742, 747, 345 A.2d 21 (1974) (observing that “[g]ross earnings is not a criterion for awards of alimony” and that “[i]t is the net income
A trial court‘s reference to a party‘s gross income or earning capacity by itself will not, however, trigger a reversal. A well established line of post-Morris Appellate Court case law holds that a trial court‘s failure “to state explicitly that an award for alimony is based on net income . . . does not automatically negate the validity of the award on appeal when there is ample evidence from which the court could have determined the parties’ net income.” Fronsaglia v. Fronsaglia, supra, 202 Conn. App. 783. Although “support and alimony orders must be based on net income, the proper application of this principle is context specific. . . . [W]e differentiate between an order that is a function of gross income and one that is based on gross income. . . . [T]he term based as used in this context connotes an order that . . . takes into consideration [only] the parties’ gross income and not the parties’ net income. Consequently, an order that takes cognizance of the parties’ disposable incomes may be proper even if it is expressed as a function of the parties’ gross earnings.” (Emphasis added; internal quotation marks omitted.) Leonova v. Leonov, supra, 201 Conn. App. 300. Applying this “function” principle, the Appellate Court “has overlooked the failure of the trial court to make a finding as to a party‘s net income . . . . [The Appellate Court has] concluded that such an omission does not compel the conclusion that the court‘s order was improperly based on gross income if the record indicates that the court considered evidence from which it could determine a party‘s net income, and it did not state that it had relied on the party‘s gross earnings to form the basis of its order.”27 Id.
Ultimately, we understand this line of case law essentially to be one of
Thus, we now turn to the record in the present case. The plaintiff accurately observes that the trial court‘s only specific finding as to the plaintiff‘s earning capacity is expressed in terms of gross earning capacity, which is consistent with his most recent gross earnings from employment. The memorandum of decision, however, expressly states that the plaintiff‘s “net weekly income, assets, liabilities and expenses are accurately reflected in the plaintiff‘s financial affidavit.” (Emphasis added.) Moreover, the memorandum of decision does not expressly state that the gross amount, rather than the net amount, furnishes the basis for the alimony calculations. Although it would have been better
The arithmetic underlying the trial court‘s specific orders in this case also supports application of the presumption that the trial court exercised its discretion in accordance with the governing law. Specifically, the trial court‘s memorandum of decision states that the plaintiff‘s gross earning capacity was $202,100, which was consistent with his most recent gross income from employment by the synagogue as reflected on his financial affidavit. His net weekly income on the financial affidavit was $3583, which, as the defendant argues, would be consistent with a net annual earning capacity of approximately $162,000. A $5000 per month alimony award is approximately 37 percent of that net amount, which is not a percentage that—on its face—suggests an abuse of discretion relative to the earning capacity on which it is based.
b
Finally, we consider whether the alimony award is itself an abuse of discretion when viewed in light of the plaintiff‘s ability to pay. The alimony award is consistent with the trial court‘s express reliance on the defendant‘s drastically reduced earning capacity relative to that of the plaintiff, given that, at the time of trial, she was earning only $12 per hour at a part-time job, and the trial court declined to credit Joy‘s opinion that she had an earning capacity of $55,000 in the legal or nonprofit fields given her inability to secure professional employment after multiple attempts. See Powell-Ferri v. Ferri, supra, 326 Conn. 465-66 (trial court was permitted to consider husband‘s “ability to earn additional income” and wife‘s ” ‘severely limited’ ” ability to acquire future assets in ordering alimony, while also “award[ing] substantially more of the marital assets to [the wife] including the marital home“). Indeed, the trial court aptly recognized the defendant‘s contributions to the marriage and to the plaintiff‘s professional success given her distinct role as the rabbi‘s wife, which is consistent with the principle that, “[w]hen the disadvantaged spouse‘s efforts increased the other‘s earning capacity at the expense of [his or] her own, he or she is entitled to sufficient alimony to ensure the continued enjoyment of [that] standard of living . . . .” (Internal quotation marks omitted.) Hornung v. Hornung, supra, 323 Conn. 162.
Second, given that the cash assets were split evenly and that the plaintiff received the marital home, 45 percent of the retirement accounts, and 75 percent of the Westview distributions, the trial court‘s alimony order is not “irreconcilable with the principle that alimony is not designed to punish, but to ensure that the former spouse receives adequate support. . . . [I]t is hornbook law that what a spouse can afford to pay for support and alimony is a material consideration in the court‘s determination as to what is a proper order . . . .” (Citations omitted; internal quotation marks omitted.) Greco v. Greco, supra, 275 Conn. 361-62. Compare id., 350, 352-53, 362-63 (it was abuse of discretion to award wife 98.5 percent of marital estate, including shares in husband‘s business, while ordering weekly alimony, attorney‘s fees and life insurance coverage, which left husband with annual net income deficit), Onyilogwu v. Onyilogwu, 217 Conn. App. 647, 655-57, 289 A.3d 1214 (2023) (reversal was required when ten year alimony award was based on temporary pandemic unemployment benefits, the subtraction of which meant that “the court‘s order requiring the
Finally, the trial court expressly recognized that the parties’ financial circumstances might evolve, insofar as it emphasized that the order was subject to modification as to term and amount, unless that claimed modification was to be based on the defendant‘s increased earnings, which would then have to be $50,000 or more. See Birkhold v. Birkhold, supra, 343 Conn. 810 (noting that trial court expressly provided “a ‘second look’ ” for modified alimony award when husband reached age of sixty-five); cf. Oudheusden v. Oudheusden, supra, 338 Conn. 776-77 (observing that “nonmodifiable, lifetime alimony awards are strong medicine” in reversing permanent, nonmodifiable award on ground that, “[t]o the extent that the [trial] court did consider” husband‘s age, health, or earning potential in entering that award, “it could not reasonably have concluded on [the] record that the [husband] would continue to earn, at a minimum, the same income for the rest of his life“). Bearing in mind that the “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) Brody v. Brody, 315 Conn. 300, 313, 105 A.3d 887 (2015); and that this is not an order that “forced [the plaintiff] to the brink of abject poverty by his obligations . . . and then stripped [him] of any means with which to pay them by the disproportionate division of the marital assets“; Greco v. Greco, supra, 275 Conn. 363; we conclude that the trial court‘s alimony order, when considered in light of the plaintiff‘s net earning capacity, was not an abuse of its discretion.
The judgment is affirmed.
In this opinion the other justices concurred.