82 CBJ 319. 2007 DEVELOPMENTS IN CONNECTICUT FAMILY LAW.

• Author: By SAMUEL V. SCHOONMAKER, IV(fn*)

Connecticut Bar Journal

Volume 82.

82 CBJ 319.

2007 DEVELOPMENTS IN CONNECTICUT FAMILY LAW

Connecticut Bar Journal Volume 82, No. 3, Pg. 319 September 2008

2007 DEVELOPMENTS IN CONNECTICUT FAMILY LAWBy SAMUEL V. SCHOONMAKER, IV(fn*)Connecticut's appellate courts addressed a broad array of family law topics in 2007. Several Supreme Court decisions pronounced new law relating to premarital agreements, discovery, alimony and child support. yet, the Appellate Court rendered the most revolutionary decisions of the year.

1. PREMARITAL AGREEMENTS

   Friezo v. Friezo(fn1) considered two of the requirements for execution of premarital agreements. It was the Supreme Court's first case involving interpretation of the Connecticut Premarital Agreement Act, and it reveals an approach to premarital agreements that is broader than its specific holdings.

   Friezo analyzed financial disclosure requirements, and determined that the trial court's inquiry must focus on the substance of what is produced rather than the recipient's understanding. General Statutes Section 46b-36g(a)(3) states in relevant part, "A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves thatT (3) Before execution of the agreement, such party was not provided a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party." Justice Zarella, writing for the majority, reasoned that the timing of the disclosure is irrelevant, as is the acumen of the person receiving the information. Consistent with McHugh v. McHugh,(fn2) which predated the Connecticut Premarital Agreement Act, the trial court's inquiry must address the nature, extent and accuracy of the financial disclosure.(fn3)

   Nothing in the record indicated that the detailed list of assets and liabilities that the defendant disclosed in Friezo was either inaccurate or incomplete. Also, the plaintiff had some knowledge of the defendant's finances before she received the disclosure. The trial court misapplied the law when it invalided the premarital agreement due to the timing of the disclosure and the plaintiff's ability to understand it. Those considerations would be relevant to questions of duress and voluntary execution of an agreement, but not to whether the disclosure itself was "fair and reasonable."(fn4)

   In dissent, Justice Norcott criticized the cursory nature of the defendant's financial disclosure. The dissent also observed that the defendant did not disclose his income until shortly before the parties executed the premarital agreement.(fn5)

   The Supreme Court also reversed the trial court's determination that the plaintiff "was not afforded a reasonable opportunity to consult with independent counsel, as required by General Statutes Section 46b-36g(a)(4). The plaintiff consulted with independent counsel two days before she signed the premarital agreement.(fn5)

   Additional facts are necessary to analyze this issue. The plaintiff was a citizen of the united kingdom with a high school education. The defendant proposed marriage and told the plaintiff that he wanted a premarital agreement. The parties scheduled a wedding two months later, but postponed it by a week because the premarital agreement was not ready. The defendant provided a draft premarital agreement eight days before the wedding, without financial disclosures. He suggested that the plaintiff call his sister-in-law for an attorney referral. Three days before the wedding, the plaintiff met with the sister-in-law, who was an attorney, and was introduced to an associate attorney who practiced at the same New york City law firm. The plaintiff waived the conflict of interest. The plaintiff and the associate did not discuss the defendant's financial disclosure, which had been faxed to the associate but not provided to the plaintiff. That financial disclosure ultimately was incorporated into the final premarital agreement as a schedule, without revision. Twenty-four hours before the wedding, the plaintiff reviewed the premarital agreement in its entirety, including the defendant's financial disclosure. The parties then executed the premarital agreement, which included most of the changes the plaintiff had requested through her attorney.

   The Supreme Court determined that the plaintiff had a reasonable opportunity to consult with independent counsel, and it reversed the trial court's finding to the contrary. The plaintiff consulted with the associate, both in person and in a subsequent telephone call. There was nothing in the record to show that her attorney was not independent, the trial court findings to the contrary notwithstanding. The plaintiff could have postponed the ceremony again if she wanted more time to consider the agreement, especially since the wedding was to be performed before a justice of the peace and without guests. Although her immigration visa would expire within three weeks, there was enough time to resolve any questions.(fn6)

   The Supreme Court's analysis in Friezo signals an approach to enforcing premarital agreements that may extend to the voluntary execution and unconscionablity prongs contained in General Statutes Sections 46b-36g(a)(1) and (2). The Supreme Court forcefully indicated that whether a party has a college degree conveys nothing about her ability to understand a premarital agreement. It also criticized paternalistic presumptions that once prevailed in the law, stating there is no "viability in the presumption that women are uninformed, uneducated, and readily subject to unfair advantage in marital agreements ."(fn7)

2. FINANCIAL ORDERS

   1. property

      Two unanimous Appellate Court decisions left the family bar befuddled. Both upheld the equitable division of assets that may be acquired after the date of dissolution.

      The first case, czarzasty v. czarzasty,(fn8) reads like a dissent and describes the leading Supreme Court decision in Bender v. Bender(fn9) as "imprecise precedent." At issue was the defendant's prospective receipt of a performance-based deferred compensation "certificate" valued at $100,000. Receipt was contingent upon meeting individual productivity goals over a ten-year period, two years of which were to occur after the dissolution. The defendant either would receive the entire certificate or none of it. He had not earned it yet, but the trial court determined that he probably would because his job performance was on target to do so. Once earned, the defendant would have a legal right to the certificate. The trial court determined that the certificate was property, that it was 80% earned, and awarded it to the defendant.

      The Appellate Court affirmed the trial court decision, but began with an analysis that suggested that reversal was appropriate. It analyzed Connecticut case law over several decades, reasoning that the test for determining if an interest constituted property had been whether a litigant possessed a presently existing enforceable right. Mere expectancies were not property and could not be equitably divided.(fn10) Conversely, a presently existing enforceable right was property, even if it was contingent upon future events.(fn11) The defendant in czarzasly did not have an existing enforceable right to the certificate.

      However, the law changed in 2001 when the Supreme Court broadened the meaning of property in Bender, departing from the requirement of an existing enforceable right. It instead focused on whether eventual realization of some benefit is more than a mere expectancy. In Bender, a firefighter had made contributions to a municipal pension. If he completed twenty-five years of service, he would be entitled to a pension, and if not, he would be refunded his contributions. The Supreme Court affirmed an award dividing the unvested pension as marital property on the ground that the expectation was sufficiently concrete to constitute a presently existing property interest. The Appellate Court in czarzasly reasoned that whether an interest constitutes property under General Statutes Section 46b-81 now depends on a case-by case "probabilistic assessment untethered by the existence of a presently enforceable right." A trial court must assess the "degree of certainty" that a litigant "will eventually receive" an asset.(fn12) The Appellate Court could not find an abuse of discretion based on this amorphous standard.

      Two months later, the Appellate Court in Ranfone v. Ranfone(fn13) affirmed an equal division of a pension as of the date the defendant would become eligible to collect benefits. The trial court's award, therefore, divided property that might be acquired after the marriage, in the form of post-dissolution pension contributions. The Appellate Court affirmed, reasoning that Bender determined that adherence to the theme or purpose of equitable division is more important than obeying strict contract or property principles. The trial court also did not have to value the pension as of the date of dissolution. Present division of the entirety of the defendant's pension, including post-dissolution contributions, was not an abuse of discretion under the broad language in Bender.(fn14)

      The six respected jurists who decided czarzasty and Ranfone included two former members of the American Academy of Matrimonial Lawyers, the former Chief Administrative Judge of Family, the Chief Judge of the Appellate Court, and a former Chief Justice of the Supreme Court (who had decided...