914 A.2d 533 (Conn. 2007)
Victoria Wood Friezo, a United Kingdom citizen with a high school education, began working in London in 1994 as a trader's assistant and personal aide at Bankers Trust under the direction of David Friezo.1 The parties began dating within one week of the plaintiff's new employment.2 Six or eight weeks later, the parties became sexually intimate.3 The plaintiff moved out of her mother's house two weeks later to live with the defendant in his apartment.4 The parties maintained their finances separately.5 The defendant paid the shelter costs but did not provide any cash, credit card or bank account access to the plaintiff.6 The plaintiff paid her own expenses.7 Prior to their marriage, the parties never had any conversation about the defendant's income or assets.8
The plaintiff accompanied the defendant on business and personal trips to the United States for the next two years.9 In the spring of 1996, the plaintiff accompanied the defendant as he looked for a house to buy in Connecticut.10 The defendant subsequently purchased a house in Westport.11 She took an unpaid leave from Bankers Trust in summer 1997 that led to her termination in October 1997. In the summer of 1997, the defendant asked the plaintiff to go to the United States to oversee renovations and furnishing of the Westport house.12 The plaintiff readily agreed to his request and took an unpaid leave of absence from the Bankers Trust job.13 In October 1997, the plaintiff received notice that her employment at Bankers Trust was terminated because of the extraordinary length of her leave of absence.14 In 1998, the plaintiff discovered that she was entering the United States on a tourist visa for the last time.15 The trip to Westport in the summer of 1998 would be her last unless her immigration status changed.16 The parties went together to see an immigration lawyer in August 1998.17
The defendant proposed marriage to the plaintiff on August 20, 1998.18 Shortly after proposing marriage, the defendant informed the plaintiff that a premarital agreement would be necessary.19 The parties needed to marry by the latter part of November 1998 in order for the plaintiff to remain legally in the United States.20 The wedding was set for November 13, 1998.21 On November 5 the defendant handed the plaintiff a facsimile copy of a draft premarital agreement.22 The plaintiff read the draft agreement over the weekend of November 7 and 8, and made handwritten notes on seven of its twenty-one pages.23 The notes suggested that she had read the agreement carefully.24 Among the words that she underlined in article six, which concerned waiver and release of her future rights and claims against the defendant, were "waives," "releases," "rights," "claims," "alimony" and "maintenance."25 The plaintiff also completed schedule B, noting that she had no liabilities and that her assets consisted of a "checking account" valued at $4000, a "savings account" valued at $11,000, "shares" valued at $4000, and an "endowment" valued at $3000, for a total asset value of $22,000.26
On November 10 the plaintiff met for approximately one-half hour with attorney Eamonn F. Foley at the firm of the defendant's sister-in-law, Kristen A. Friezo, after signing a conflict of interest waiver. Foley first asked the plaintiff to sign a conflict of interest waiver, which she did.27 The two then met for approximately one-half hour.28 Because Foley already had a copy of the draft, the plaintiff did not show him her copy.29 When Foley asked the plaintiff if she had any questions, she posed the questions that had come to mind during her weekend review of the draft.30 Foley stated that her points were well taken and that he would look into them.31 According to the plaintiff, Foley did not show or discuss with her a facsimile copy of the defendant's assets and liabilities that the defendant's attorney had sent to him on Friday, November 6.32 The document listed assets with a total value of $6,576,000.33 On November 12, twenty-four hours before the wedding, the parties met in the offices of the defendant's attorney and signed the final agreement.34 The agreement presented to the plaintiff for signature contained all of the financial information absent from the original draft.35 This included figures indicating the parties' respective annual incomes and the completed schedules A and B.36 The trial court determined that the plaintiff had reviewed the final agreement in a separate room for at least twenty minutes prior to its signing, during which time she "looked at" schedule A and the income provisions.37 The parties married on November 13, 1998.38 On July 2, 2002, the plaintiff filed for dissolution, claiming an irretrievable breakdown of the marriage.39 The plaintiff requested equitable distribution of the parties' assets pursuant to General Statutes § 46b-81, alimony, child support, joint legal custody of the parties' minor child, physical custody of the minor child and other relief.40 After a nine-day trial in July and August 2004 the trial court issued a memorandum of decision on August 27, 2004, finding the prenuptial agreement unenforceable, dissolving the marriage, and entering financial orders that included an $8,220,000 property award to the plaintiff and $125,000 in attorney's fees.41 The defendant appealed from the judgment of the trial court.42
Whether the trial court properly concluded that the prenuptial agreement was unenforceable because the defendant failed to provide the plaintiff with a fair and reasonable financial disclosure?43
Under General Statutes § 46b-36g (a)(3), a premarital agreement is not enforceable if the party against whom enforcement is sought proves that before execution she was not provided a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party.44 Fair and reasonable disclosure requires each party to provide the other with a general approximation of their income, assets and liabilities.45 A written schedule appended to the agreement is the most effective method, though not absolutely necessary.46 The burden is on each party to inform.47 The disclosure need not be exact or precise as long as it provides an accurate understanding of the nature and extent of the party's property interests.48
No. The defendant provided the plaintiff with a fair and reasonable financial disclosure when he included in the final agreement a statement that his 1997 gross income was $2,300,000 and schedule A listing assets with a total net worth of $6,576,000, most valued individually.49 The plaintiff acknowledged in the agreement that she had examined the list of assets and liabilities and clearly understood and consented to all terms.50 The trial court validated the disclosure by relying on schedule A when calculating its financial orders.51 The plaintiff did not allege that the disclosure was inaccurate or incomplete.52
Although the plaintiff had only a high school education and limited financial experience, the test for adequate disclosure does not depend on the capacity of the receiving party to understand the information, as the burden is on the disclosing party to inform.53
The trial court improperly concluded that the prenuptial agreement was unenforceable on the ground of inadequate financial disclosure.54
Related opinions on this issue
Justice Norcott dissents on the ground that the trial court's conclusions under § 46b-36g (a)(3) and (4) were factual findings subject only to clear-error review rather than plenary review.55 The statute lists four bases for unenforceability but specifies that unconscionability is decided as a matter of law, implying by negative implication that the other three grounds present questions of fact.56 The trial court's finding of inadequate disclosure was supported by evidence that the disclosure listed assets in cursory and ambiguous terms without explaining valuation methods or the nature of employee plans.57
The income figure appeared only twenty-four hours before the wedding, leaving the plaintiff little time to evaluate it.58 Given the plaintiff's financial inexperience and the parties' failure to discuss finances, the disclosure did not satisfy the statutory standard.59 He would affirm the trial court's conclusion that the agreement was unenforceable under § 46b-36g (a)(3).60
Justice Katz dissents on the ground that the trial court's finding of inadequate disclosure was not clearly erroneous under either prong of the test.61 There is evidence in the record supporting the finding because the disclosure was cursory, the income figure was provided only the day before the wedding, and the plaintiff lacked financial sophistication with no prior knowledge of Connecticut marital property law.62 Although some evidence supported the defendant's position, the reviewing court is not left with a definite and firm conviction that a mistake was committed.63
She would affirm the trial court's determination that the agreement was unenforceable.64
Whether the trial court properly concluded that the plaintiff was not afforded a reasonable opportunity to consult with independent counsel before signing the prenuptial agreement?65
Under General Statutes § 46b-36g (a)(4), a premarital agreement is not enforceable if the party against whom enforcement is sought proves that she was not afforded a reasonable opportunity to consult with independent counsel.66 A reasonable opportunity means only that the party had sufficient time before the marriage to consult an attorney other than the attorney representing the future spouse.67 Actual consultation is not required.68 Representation by an attorney in the same firm as the opposing party's relative does not automatically destroy independence when conflict waivers are signed.69
No. The plaintiff had a reasonable opportunity to consult with independent counsel because the defendant informed her more than two months before the wedding that a prenuptial agreement would be necessary.70 She in fact met with attorney Foley for thirty minutes, posed questions from her review of the draft, and received revisions she had requested.71 Foley was independent within the meaning of the statute because Rule 1.8(i) of the Rules of Professional Conduct provides that disqualification arising from a lawyer's relation to another lawyer is personal and is not imputed to other members of the firm.72 The plaintiff signed a conflict waiver.73
The trial court's findings of fraud or disloyalty by Foley are unsupported by clear and convincing evidence.74
The trial court improperly concluded that the plaintiff was not afforded a reasonable opportunity to consult with independent counsel.75
Whether the trial court improperly presumed that the parties were entitled to an equal distribution of marital property in fashioning its financial orders?
General Statutes § 46b-81 governs distribution of marital property and requires the court to consider the length of the marriage, the causes for dissolution, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each party, the opportunity of each for future acquisition of capital assets and income, and the contribution of each party in the acquisition, preservation or appreciation in value of their respective estates.76 The statute contains no presumption of equal division.77 Equitable distribution is not community property.78 The court may assign all or any part of one spouse's estate to the other.79
Yes. The trial court began its analysis with the premise that the worth of the contribution of each party in a marriage of equals is of equal dollar value.80 The court then applied the statutory criteria only after invoking that premise.81 The court explicitly stated that if each party fulfilled his or her part of the marital bargain the contribution of each should be worth one half of the paid compensation received during the marriage.82
This approach improperly imported a community-property starting point that the statute does not authorize.83
The trial court improperly presumed that the parties were entitled to an equal distribution of marital property.84
Related opinions on this issue
Justice Norcott would reverse the financial orders on the independent ground that the trial court improperly began its analysis with a presumption of equal distribution of marital property.85 That premise is contrary to the plain language of § 46b-81, which permits the court to assign all or any part of one spouse's estate to the other and lists numerous criteria without any presumption language.86 It is also contrary to the Appellate Court's decision in Wendt v. Wendt.87
He would remand for a new hearing on financial orders applying the statutory criteria without any equal-division presumption.88
Justice Katz would reverse the financial orders because the trial court's use of an improper equal-distribution presumption was not harmless error.89 The court's memorandum of decision and colloquy with counsel demonstrate that the presumption affected the outcome at trial.90 Financial orders are interwoven so that an error in one element requires remand for reconsideration of all financial orders.91
She would reverse the judgment as to the financial orders only and remand the case for a new hearing.92