Seder v. Errato, 211 Conn. App. 167 (2022) (parol evidence for prenuptial agreement; counsel fees pursuant to § 46b-62)
Officially released March 8, 2022
In Short: (1) The trial court did not err in excluding an undated, unsigned, unfilled in, boilerplate document as parol evidence of a prenuptial agreement where the testimony of the parties was ambiguous as to the alleged contents, disclosure and date of the prenuptial agreement; and (2) the trial court did not err in awarding $280,000 in legal fees pursuant to § 46b-62 given Wife’s lack of liquidity.
The parties married in 2003. It was the third marriage for each. Wife filed for divorce in 2015. A trial was held over nineteen days between May 2017 and June 2019. An additional four days of modification hearing regarding pendente lite alimony were held in the middle of the trial.The parties both testified that there had been a prenuptial agreement (“Prenup”). Husband testified that he had downloaded a generic prenuptial agreement and filled it out himself, although his testimony was somewhat contradictory. The testimony regarding the disclosures of the parties for the Prenup was uncertain at best. Wife testified that Husband had not signed the Prenup at the time that she did, and she never saw an executed copy. Wife had no clear recollection of the terms or disclosures of the Prenup. The trial court noted a lack of credibility for both parties as to this issue.
Husband sought to introduce evidence of the contents of the Prenup through a copy of a boilerplate agreement which was not filled in. The trial court allowed an evidentiary hearing on the motion to preclude Husband’s exhibit, noted that Connecticut law allows a party to prove the existence and terms of a contract by parol evidence if it is lost, stolen or destroyed, but ultimately found that there was a lack of evidence here as to the terms. The trial court found that, even addressing the facts in the best light to support the Husband, it could not find by a preponderance of the evidence that it knows the terms of the Prenup, nor could it determine the date of the Prenup. Thus, the trial court excluded the exhibit.
Wife incurred nearly $560k in legal fees, plus a retainer of $40k for the appeal. Wife’s financial affidavit showed total assets of $552k, of which 50% were in retirement funds and only $151k were in liquid assets. Husband’s financial affidavit disclosed assets of $973k, and the trial court found that many are undervalued. The trial court found that legal fees were warranted both pursuant to § 46b-62 and due to litigation misconduct.
The trial court ordered, inter alia, that Husband pay monthly alimony of $2,500, lump sum alimony of $450,000, and counsel fees of $250,000. Wife sought and was granted appellate attorney’s fees of $30,000, on the basis that Wife lacked access to liquid funds to pay her own fees. Husband appealed.
Husband’s first claim on appeal was that the trial court improperly refused to enforce the parties’ Prenup. The Appellate Court reviewed this claim for abuse of discretion, based on whether the trial court properly excluded the exhibit purporting to show the terms of the Prenup, noting that the trial court never reached the question of enforceability of such Prenup. The Appellate Court determined that the trial court was well within its discretion to exclude an unsigned, undated and unfinished boilerplate prenuptial agreement document. The Appellate Court found no error in the trial court’s finding that Husband failed to prove the contents of the alleged missing document.
Husband’s second claim on appeal was that the trial court erred in ordering him to contribute $280,000 to Wife’s attorney’s fees. Husband argued that (1) Wife had sufficient funds from which to pay her attorneys, (2) improperly ordered the fees for two counts of litigation misconduct despite finding that one of the two had a “colorable theory” and (3) improperly “awarded $250,000 for the plaintiff’s trial counsel fees despite it being certainly beyond the court’s ability to fully understand the amount of the preparation time expended by the plaintiff’s counsel in defending against the litigation misconduct.’’
The Appellate Court concluded that the award was proper within § 46b-62 and so did not reach the claims related to the trial court’s second independent basis for awarding attorney’s fees. The Appellate Court reiterated the principles to be applied to § 46b-62 and reviewed the claim for abuse of discretion. The Appellate Court found nothing to support Husband’s assertion that the award of fees was abuse of discretion. The $280,000 represented 185% of Wife’s liquid assets. The Appellate Court stated that, even if one considered the $450,000 lump sum alimony award, which was stayed during the appeal, the fees would still be 47% of the total. The Appellate Court noted in a footnote that “[t]he trial court need not make an express finding with respect to whether the fee award is necessary to avoid undermining the other financial orders, so long as the record supports that conclusion.”
The Judgment was affirmed.