Opinion
No. FA03-0194829 S
August 13, 2004
MEMORANDUM OF DECISION
This is an action to dissolve the marriage of the parties on the ground of irretrievable breakdown. Legal counsel represented each party. After taking evidence on a motion in limine over six days in January, February and March 2004, the court determined that the parties' premarital agreement of March 17, 1997 (the premarital agreement), was sufficient as to financial disclosures, execution and lack of coercion. The plaintiff's execution of the premarital agreement was knowing and voluntary. See Dornemann v. Dornemann, 48 Conn.Sup. 502, 805 A.2d 273, 37 Conn. L. Rptr. 74 (2004). The parties reserved to trial questions of unconscionability as to the enforcement of the premarital agreement. Both parties briefed those issues. The parties stipulated that the court should incorporate into the trial proceedings all testimony and exhibits presented at the hearing on the motion in limine.
The trial extended over nine days beginning May 18, 2004, and ending May 28, 2004. The parties endorsed the parenting plan put forward in writing by the attorney for the minor children, except that the plaintiff objected to the use of a parenting coordinator. Each party presented revised claims for relief to the court in the last week of the trial. Although the defendant used the term "stipulation" in the captions for two of his documents, those two documents were not signed or endorsed by the plaintiff. The court has treated those two documents as additional claims for relief by the defendant.
The more credible evidence leads to the following factual findings. The plaintiff, whose maiden name was Maryann Hegel, and the defendant married April 13, 1997, in New York City. This is the first marriage for the plaintiff and the third for the defendant. The plaintiff has resided in the State of Connecticut continuously for more than one year next before the date of the complaint. There are two children issue of the marriage: Alexander, born September 2, 1997, and Malena, born January 29, 2001. No other children have been born to the plaintiff since the date of the marriage. No one in the family has received financial support during the marriage from the State of Connecticut or any municipality thereof. The marriage of the parties has broken down irretrievably.
The plaintiff is forty years old. Her health is good. She was born in Miami, but lived on a horse farm in Murphysboro, Tennessee from the age of six after the divorce of her parents. The plaintiff used her mother's surname "Hall" when she lived in Tennessee. The plaintiff's father is an architect in Guatemala. In 1995 or 1996, the plaintiff began using her father's surname "Hegel." The plaintiff graduated from high school in Tennessee in 1981. She attended Middle Tennessee University for three years, living at home. For two years, she studied interior design in Miami. She was a fashion model in Europe for one-and-a-half years, then moved to New York City at the age of twenty-three. In New York, the plaintiff pursued her modeling career, as well as interior design work. She joined her sister in owning and operating a European style bar/restaurant for one-and-a-half years.
When the plaintiff met the defendant on a blind date on September 25, 1995, she was working as an interior designer and living in her own apartment on 71st Street. She was thirty-one years old. In the year 1995, the plaintiff had a yearlong job designing the interior of a penthouse on the West Side in New York City. Her compensation was $2,000 per week.
After dating the defendant in the latter part of 1995, including two trips with him to Europe, the plaintiff gave up her apartment at the beginning of 1996, and moved into the defendant's New York apartment. The plaintiff traveled with the defendant to several of his homes throughout the world. The plaintiff ended her interior design employment in the late spring of 1996. She learned that she was pregnant in January 1997. The parties set April 13, 1997, as the wedding date. The plaintiff executed the premarital agreement on March 17, 1997.
The plaintiff is the sole beneficiary of two trusts established by her mother in the 1980s. As of November 30, 2003, the total value of the trusts was approximately $587,000. The plaintiff's mother adds money to the trusts each year. When her mother adds to the trusts, the plaintiff is given the opportunity to remove limited amounts from the trusts during a window of time in December. In December 2003, the plaintiff took advantage of the opportunity to take money from a trust and removed $10,000. She has not taken money out of the trusts at any other time during the marriage.
The plaintiff has not pursued employment outside the home during the marriage. With the assistance of nannies, housekeepers, cleaning staff, house managers, cooks, groundskeepers and chauffeurs, she has raised the children, traveled and entertained family, friends and the defendant's business associates in the United States and abroad. The defendant's secretary organized and paid household bills for the parties.
The plaintiff moved out of the parties' Greenwich residence September 1, 2003, to a rental at 5 Loch Lane, Greenwich. The plaintiff's rental contract expires August 31, 2004. She would like to move to New York City. The plaintiff feels that the educational and cultural opportunities for children in New York City are superior. The plaintiff has friends in New York City. Her sister, Bettina, is returning soon to live in Manhattan. Bettina is in the business of leasing luxury apartments in that city. The plaintiff may be able to get referrals from her sister to resume her career in interior design. The plaintiff has experience and talent in the field of interior design. She believes she could have a successful career in New York City. It would not be feasible for her to be self-supporting as an interior designer in Greenwich without the benefit of referrals from her sister.
The defendant is fifty-eight years old. His health is good. He is a German national. He has a master's degree in business administration and a Ph.D. in economics. The defendant began working at Bertelsmann AG (Bertelsmann) in 1984. He specialized initially in mergers and acquisitions. In 1985, he became an executive board member. In 1987, the defendant arranged Bertelsmann's purchase of Doubleday. In that same year, he negotiated with Jack Welsh to bring about RCA's merger into Bertelsmann. As part of the RCA deal, the defendant became co-chief executive officer of Bertelsmann's music division (BMG). That job entailed living and working primarily in the United States. In 1995, the defendant also became the chief executive officer of the struggling television division (the RLT Group) at Bertelsmann. Because the RLT Group encompassed only European television and was headquartered in Luxembourg, the defendant took business trips to Europe about forty times per year beginning in 1995.
For approximately fourteen years, until his forced retirement at the end of June 2001, the defendant worked at the highest levels of Bertelsmann, a multi-billion dollar entertainment company. He headed two of its six or seven major divisions. The defendant enjoyed those parts of his job requiring his strategic, mergers and acquisitions, and teamwork skills. He did not enjoy the frequent travel and the evening social events. In 2000, a management shake-up at the highest levels of Bertelsmann led to the departure of the defendant's mentor. With the departure of his chief ally on the board, the defendant's viewpoints and strategies were not in harmony with the new management team. The company presented a separation plan to the defendant and forced him out. The defendant worked full-time at Bertelsmann through December 2000. He worked part-time from January 2001 through June 2001, to effectuate the transition to new management.
Executives of German companies generally retire at the age of sixty. When he married the plaintiff in 1997, at the age of fifty-one, the defendant knew that he would be getting retirement pay from Bertelsmann at the age of sixty in the amount of $25,000 per month ($300,000 per year). The defendant's separation package from Bertelsmann in 2000, provided his full salary, at the rate of $5,200,000 per annum through June 30, 2001, plus use of the New York City apartment and company car through June 2002. The defendant also received substantial lump sums, minus taxes withheld, in 2001 and 2002. From July 1, 2001 to the present, the defendant has received $25,000 per month as salary from Bertelsmann. He will continue to receive that salary through October 31, 2005. The defendant's gross wages and compensation from Bertelsmann were $3,331,311 in 2000; $19,372,365 in 2001; and $8,487,235 in 2002. He received $300,000 from Bertelsmann in 2003.
The defendant's retirement pay at $25,000 per month begins in November 2005, which is immediately after the defendant attains the age of sixty years. The retirement pay ceases when the defendant dies, except for a child support provision. If the defendant dies and is survived by children, the retirement plan will pay $5,000 per month for the support of each of his children through the age of eighteen. If a child continues in school, however, the plan will continue to pay the $5,000 per month until age twenty-seven or the end of the schooling, whichever occurs sooner. The defendant maintains an accidental death or dismemberment life insurance policy in the face amount of $50,000. He has no other life insurance.
The defendant causes his pay from Bertelsmann to be paid into a solely owned corporation, Dornemann Co., LLC, which is also the base for his management consulting business. He runs the business from his Greenwich house with one part-time secretary. The defendant serves as chairman of the board of Strenesse, a high-end fashion company for men and women. He is paid $2,500 per month. He travels overseas six or seven times per year to attend board meetings and fashion shows. The defendant serves on the board of Directory M and travels to Boston for board meetings. His compensation for that service is $2,000 per month. The defendant serves on the board of Crossing Pictures, a company that makes commercials. He is not compensated for that service. From his consulting business and services on boards of directors, the defendant earned $136,537 in 2001, and $257,601 in 2002. Both of those sources continue to generate income to supplement the $300,000 per year now paid by Bertelsmann. The defendant's earned income is now about one-eighth of what it was at the time of the parties' marriage.
The defendant's stocks, bonds and mutual funds now total approximately $8,900,000. Those assets generate interest and dividend income of $16,000 per month ($192,000 per year). The return on investment is 2.16 percent.
The defendant derives rental income from houses or condominium units owned by him in Cannes, France; Munich, Germany; and Aspen, Colorado. The current cash flow from these properties is negative. His apartment in Potsdam, Germany is unoccupied and offered for sale. He owns Canadian commercial real estate that nets $934.76 per month. The defendant receives $5,000 per year for license rights for passage through his log home property in Basalt, Colorado.
The defendant's total net income is greater than $25,000 per month. His income is substantially in excess of the income tables in the Connecticut child support guidelines. The parties and the two children have been covered by the BMG health care plan during the marriage. The defendant will continue to receive the benefit of the BMG health care plan for himself and the children upon the dissolution of the parties' marriage.
The defendant has a twenty-four year old son from his first marriage. The defendant pays $5,000 per month in alimony and child support to his first wife. Two-thirds of the support is for the first wife and one-third is for the son. The defendant also pays his son's school costs. The plaintiff has been supportive of the defendant's relationship with his older son.
The minor children are now six and three years old. Their health is good. Although Alexander was seeing a therapist for a time during this divorce process, the visits have been discontinued. The children have always attended private pre-schools and kindergarten. In the 2003-2004 school year, the annual cost at the Whitby School was $12,000 for Alexander and $7,000 for Malena. The defendant has paid those costs. When the family moved from New York City to the Greenwich house full-time in November 2001, the plaintiff or the chauffeurs drove Alexander daily into New York City to continue his pre-school program there. Since the fall of 2002, the children have attended schools in Greenwich. They have been living primarily with the plaintiff during the separation of the parties and will continue to live primarily with the plaintiff for the foreseeable future.
The children are accustomed to frequent travel with their parents. In a typical recent year, the family would go to Antigua or Florida for a few days in February; two weeks in Aspen, Colorado in the spring; all of June and July in Cannes, France; August in Aspen; ten days or so in Antigua at Thanksgiving time; and four weeks in Aspen for the Christmas holidays. The children have also visited the plaintiff's mother in Tennessee. At the homes in Cannes, Aspen and Antigua, the parties usually entertained several extended family members and friends. It was the plaintiff's responsibility to plan the trips, organize the households, and be hostess to the guests. The plaintiff also provided special events at the house in Greenwich, such as birthday parties, Christmas parties and Easter egg hunts with as many as fifty-four children and their parents in attendance.
Because the parties entered into a premarital agreement in the month before their marriage, the assets held by each at that time are well documented. The trusts from the plaintiff's mother were valued at $419,000 at the time of the marriage. The plaintiff's bank accounts were minimal. The defendant owned real estate when the parties married: an apartment in Munich, Germany; fifty percent of a townhouse in Antigua; the house in Greenwich, Connecticut; a boat dock in Cos Cob, Connecticut; a townhouse in Aspen, Colorado; a partly-constructed log house in Basalt, Colorado; and a house in Cannes, France. After subtraction of the outstanding mortgages, the net value of the real property was $4,878,000. The defendant owned a stock portfolio, bank accounts and certificates of participation worth $5,818,500. In addition to the net worth of $10,696,500 in real property and liquid assets, the defendant had an expectation of retirement income of $300,000 per year at the age of sixty plus the right to continue on the BMG health care plan after retirement. He owned two boats, several cars and miscellaneous artworks and furnishings. Neither party had significant debt at the time of the marriage, except the mortgages on the defendant's properties.
In addition to her trust accounts, the plaintiff now has checking accounts totaling $70,000 and a lease deposit of $13,400. She values her jewelry at $45,000. The plaintiff has borrowed money from her mother while this case has been pending in order to pay attorney fees and some living expenses. She owes approximately $150,000 to her mother. At this time, the plaintiff owes approximately $100,000 to various attorneys associated with this case. She owes $900 to Dr. Jerome Brodlie.
The real properties owned by the defendant at the outset of the marriage have been renovated and expanded. The defendant invested more than six million dollars into his real estate holdings during the marriage prior to his retirement in the year 2001. He purchased two hundred seventy acres adjacent to the property in Basalt, Colorado and completed the building of the log home on that property. The properties in Cannes, France and Greenwich, Connecticut underwent substantial renovations and expansions. The kitchen and bathrooms were reconstructed at the two-bedroom villa co-owned by the defendant in Antigua. The duplex unit in Aspen, Colorado underwent renovations. The real estate that the defendant owned at the beginning of the marriage is now worth $13,647,400 net of mortgages. The defendant has added to the real estate holdings a commercial property in Canada worth $262,000 net and an apartment in Potsdam, Germany whose mortgage exceeds market value by $29,000. The defendant now owns stock portfolios, bank accounts and certificates of participation worth $11,316,700. The defendant's real estate holdings and liquid assets have grown during the marriage from $10,696,000 to $25,226,100. The defendant owns one boat now instead of two, four cars, miscellaneous artworks and furnishings. He values those tangible assets at $430,000. Except for the negative value of the Potsdam apartment and certain mortgages, the defendant has no debt.
The court is applying a current market value for the Cannes house at $4,802,000; the Greenwich house at $4,650,000; the Aspen townhouse at $2,650,000; and the Basalt log home and property at $3,250,000. The properties in Greenwich, Aspen, Potsdam and Canada are mortgaged.
The defendant knew that his earned income would drop from several millions of dollars per year to $300,000 per year upon his retirement. He intended to reduce spending and adopt a more modest lifestyle at retirement. During this marriage, and for many years before this marriage, the defendant made and followed a conservative investment strategy to make his retirement years financially comfortable. He invested in both equities and real estate. The defendant regarded the home in Greenwich and all of his other real estate holdings as investment properties.
The defendant testified that the plaintiff spent a lot more money after the marriage than she had spent before the marriage. The plaintiff undertook much of the responsibility for interior design improvements to the various residences throughout the world. For the remodeling of the Greenwich house, she did the hiring and supervision of the contractors. Although the defendant felt that the plaintiff spent far too much money on the contractors for the renovations at the Greenwich house, he gave her a free hand and an open checkbook to get the work done. He made no serious complaint to the plaintiff about the cost. Since he left Bertelsmann in the year 2001, the defendant has made no further renovations or improvements to his real estate investments. In addition to the current marketing of the Potsdam property, the Basalt house is currently listed for sale at $3,500,000 and the Antigua apartment, in which the defendant has a fifty-percent interest, is listed for sale at $150,000.
When he left Bertelsmann, the defendant informed the plaintiff that the parties needed to reduce their living expenditures. The defendant feels that the plaintiff did not heed his request. The only change that the plaintiff seemed to make was a reduction in the budget for Christmas gifts. The defendant continued, nevertheless, to provide for all living expenses of the parties, without limitation. The defendant typically put several thousands of dollars in cash each week into the safe at home for the plaintiff to use for household expenses and as she saw fit. The plaintiff also used credit cards for ongoing expenses. Since 2001, the parties have occasionally argued about their living expenses.
The defendant grew up hiking, climbing and skiing in Germany. He also developed a passion for saltwater boating. The homes owned by the defendant are well situated for his recreational pursuits. The Cannes and Antigua vacation properties are close to the ocean. The defendant keeps his boat at a marina in Greenwich, Connecticut. The two vacation homes in and around Aspen, Colorado are close to excellent skiing and hiking areas. The defendant enjoys tennis and has taken up golf. He has country club memberships in Aspen, Greenwich and France.
Before the marriage and early in the marriage, the plaintiff joined the defendant in his recreational pursuits. She boated, skied, hiked and played tennis. Today, the plaintiff is an indifferent tennis player and no longer enjoys skiing. She does not climb mountains and has no interest in golf. She does not share the defendant's enthusiasm for boats. The plaintiff grew up in Tennessee farming country. She rode horses and swam in fresh water for recreation. Although she is expert in those activities, she has had little opportunity to continue them since she left Tennessee. The plaintiff resumed horseback riding about eight months ago. She rides two or three times per month, but would like to ride more often.
The plaintiff harbored a desire to get back to life in a country setting and raise her children on a farm for at least part of the year. She felt that the defendant's lifestyle and interests always took priority over her desires. The parties' discussions about travel and residences usually ended with the defendant's wishes being followed. The plaintiff acquiesced. In August 2002, while they were in Aspen, the parties argued heatedly about lifestyles. The defendant was planning a mountain climbing expedition to Argentina for January/February 2003. He booked a place on the expedition for the plaintiff. The plaintiff insisted that the defendant stay home and spend more time with her and the children. The plaintiff wanted the defendant to cut back on his climbing, boating, skiing and apres-ski partying. She refused to continue her participation in those types of activities. The parties stayed in separate residences for one week. Although they returned to the same household, the parties did not resolve their serious differences about living expenses and lifestyle.
The defendant was not aware of the degree to which the plaintiff was dissatisfied and angry. He believed the marriage to be on solid footing and happy. Late in 2002, the defendant made plans to revise his last will and testament. He instructed his attorneys to create a will granting the Cannes house outright to the plaintiff and giving her life use of the Greenwich house and life use of two-thirds of the remainder of the defendant's estate.
The defendant departed on January 24, 2003, for a seventeen-day expedition to climb Cerra Aconcagua, the highest mountain in the Andes. While the defendant was away, the plaintiff saw a magazine advertisement offering a 540-acre farm for sale near Lake Champlain in Vermont. The parties talked by telephone most days that the defendant was in Argentina. The plaintiff told the defendant of her interest in the farm. While the defendant was in Argentina, the plaintiff and children went to Antigua, where they hosted the plaintiff's sister and the sister's two children. The defendant joined them in Antigua after his return from the mountain climbing expedition. Seven days later, the family returned to Greenwich. On Friday, February 21, 2003, the parties drove to Vermont for a romantic weekend alone and a look at the farm.
After viewing the farm, the defendant went skiing at Stowe while the plaintiff sat in the lodge. The defendant knew that the plaintiff did not like cold weather. He felt her desire to buy the farm was precipitous and impractical. Substantial renovations would be necessary. The farm was beautiful, but the defendant was not buying. When the parties returned from Vermont, the plaintiff moved into the guestroom in the Greenwich house. The parties were barely speaking to each other.
The defendant departed on a business trip to Europe shortly after the parties returned from Vermont. While he was away, the plaintiff copied thousands of pages of documents from the safe at the Greenwich house. She had her first meeting with a divorce attorney on March 6, 2003. Unaware that the plaintiff was contemplating divorce, the defendant executed his revised last will and testament on March 10, 2003. He believed the parties' relationship to be troubled, but essentially intact. He suggested the parties go to marriage counseling. The parties flew to Aspen separately in March 2003. In Aspen, the parties occupied separate parts of the townhouse. The plaintiff made the acquaintance of Manuel Calvo on the ski slopes during that trip.
While the defendant went directly to Europe from Aspen, the plaintiff flew back to Connecticut on March 29. The plaintiff met with divorce attorneys again the next day. She had several telephone conversations with Calvo at the end of March and the beginning of April. She went to a clandestine lunch with Calvo and friends in Greenwich early in April. She also saw Calvo briefly in New York City a couple of days later. At the first joint meeting of the parties with a therapist on April 12, 2003, the plaintiff informed the defendant of her decision to seek a divorce. The defendant hired a private detective.
The defendant was served with the divorce complaint on April 15, 2003. The plaintiff immediately left to visit her mother in Tennessee, but stayed there only one day before driving to Florida to stay at the home of Calvo. Female friends of the plaintiff were at Calvo's home at the same time and shared a room with the plaintiff. A few weeks after the commencement of this divorce action, the relationship between the plaintiff and Calvo became intimate. That relationship reverted to mere friendship at the end of 2003. Since the spring of 2004, the plaintiff has been in a romantic relationship with Eli Braha, whom she knew several years before meeting the defendant. Braha has resided with the plaintiff and her children in the plaintiff's home since the beginning of May 2004.
The marriage of these parties failed because of profound differences in desired lifestyle and attitudes towards money management. The defendant's assured personality and clear vision of his own life's goals and plans did not brook compromise. By the time the plaintiff understood her own preferences and values, the parties were already well established in the defendant's lifestyle. The plaintiff was frustrated in her attempts to implement her own plans. Neither party was able to adapt sufficiently to meet the needs of the other. Neither party bears a greater responsibility for the breakdown of the marriage.
In addition to paying private school tuition for the minor children, the defendant has been paying $20,000 per month to the plaintiff as support pendente lite. He has paid $150,000 pendente lite for the plaintiff's attorney fees. By the terms of the parties' premarital agreement, each party waives any entitlement to alimony pendente lite. The premarital agreement provides that any moneys paid as alimony pendente lite shall be a credit to the defendant against any property division obligation. Despite the terms of the premarital agreement, the defendant has requested in his claims for relief that his pendente lite spousal support payments shall not be offset against the property settlement. He is not requesting the credit. The premarital agreement provides that each party shall be responsible for his or her own attorney fees in the event of a divorce action. The defendant's claims for relief ask that he not be given credit against the property settlement for the attorney fees that he has paid for the plaintiff.
It is as well that the defendant has asked the court not to enforce those provisions of the premarital agreement barring the plaintiff from alimony pendente lite and the award of counsel fees. Although no appellate court cases in Connecticut have turned on these issues as yet, the Supreme Court has suggested that such provisions in a premarital agreement might be viewed as against public policy. "[A] provision of an antenuptial agreement waiving the right to defend against a future divorce action . . . or one relieving one spouse of the duty to support the other during the marriage, has been said to contravene public policy." CT Page 12647 McHugh v. McHugh, 181 Conn. 482, 489, 436 A.2d 8 (1980). See also Fitzgerald v. Fitzgerald, 169 Conn. 147, 152-53, 362 A.2d 889 (1975); Marino v. Marino, 136 Conn. 617, 619, 73 A.2d 339 (1950).
The premarital agreement calls for allocation of $120,000 to the plaintiff upon her vacating the marital home, plus $180,000 at the entry of the decree dissolving the marriage. In addition, the plaintiff is to receive $100,000 at the time of the decree of divorce for each full year of marriage after the first year of marriage until the date either party requested a divorce. The formula, as applied to the present circumstances, provides $120,000 for the move-out, plus $180,000 for the first year of the marriage, plus $500,000 for the ensuing five years of the parties' marriage up to April 15, 2003, for a total of $800,000.
The validity of antenuptial contracts in Connecticut is governed, since October 1, 1995, by the Connecticut Premarital Agreement Act (the act). General Statutes § 46-36a et seq. Prior to the act, our Supreme Court set forth the standards for determining the validity of a prenuptial agreement in McHugh v. McHugh, 181 Conn. 482, 436 A.2d 8 (1980), as follows: "The validity of an antenuptial contract depends upon the circumstances of the particular case . . . Antenuptial agreements relating to the property of the parties, and more specifically, to the rights of the parties to that property upon the dissolution of the marriage, are generally enforceable where three conditions are satisfied: (1) the contract was validly entered into; (2) its terms do not violate statute or public policy; and (3) the circumstances of the parties at the time the marriage is dissolved are not so beyond the contemplation of the parties at the time the contract was entered into as to cause its enforcement to work injustice." (Citation omitted.) Id., 485-86. The act endorses, clarifies and codifies the McHugh standards.
I UNCONSCIONABILITY WHEN EXECUTED
The plaintiff claims that the premarital agreement was unconscionable at the time it was executed on March 17, 1997. General Statutes § 46b-36g(a) states: "A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that: . . . (2) The agreement was unconscionable when it was executed . . ." Connecticut courts have regarded "the question of unconscionability [as] a matter of law to be decided by the court based on all the facts and circumstances of the case." (Internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 87, 612 A.2d 1130 (1992). The act does not provide a definition of "unconscionable." Section 46b-36g(c) states: "An issue of unconscionability of a premarital contract shall be decided by the court as a matter of law."
"When a statue does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries." State Medical Society v. Board of Examiners In Podiatry, 208 Conn. 709, 721, 546 A.2d 830 (1988). Black's Law Dictionary defines an unconscionable agreement as one "that no promisor with any sense, and not under delusion, would make, and that no honest and fair promisee would accept." Black's Law Dictionary (8th Ed. 2004). Our Supreme Court has similarly defined an unconscionable agreement as "one which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other." See Smith v. Mitsubishi Motors Credit of America, Inc., 247 Conn. 342, 349, 721 A.2d 1187 (1998), citing Hume v. United States, 132 U.S. 406, 410, 10 S.Ct. 134, 33 L.Ed. 393 (1889). "In practice, we have come to divide this definition into two aspects of unconscionability, one procedural and the other substantive, the first intended to prevent unfair surprise and the other intended to prevent oppression." Smith v. Mitsubishi Motors Credit of America, Inc., id.
Because the Uniform Commercial Code (UCC) uses the term "unconscionable" in its regulation of the sale of goods, the word has been the focus of several decisions by our Supreme Court relating to commercial contract enforcement. See Cheshire Mortgage Service, Inc. v. Montes, supra, 223 Conn. 80; Smith v. Mitsubishi Motors Credit of America, Inc., supra, 247 Conn. 342; Hottle v. BDO Seidman, LLP, 268 Conn. 694, 846 A.2d 862 (2004). Connecticut appellate courts have not yet been asked to rule upon an interpretation of "unconscionable" as that term is used in § 46b-36g(2). Our courts have, however, invoked the provisions of the UCC 2-302, General Statutes 42a-2-302, to provide a framework for resolution of issues of unconscionability in some transactions other than sales of goods. See Hamm v. Taylor, 180 Conn. 491, 429 A.2d 946 (1980) (unconscionability as applied to real estate mortgages); Conference Center Ltd v. TRC, 189 Conn. 212, 455 A.2d 857 (1983) (unconscionability as applied to constructive eviction).
Consistent with the classic definition of "unconscionability," this court will use as its guide the approach taken by our Supreme Court in those cases that have extrapolated from the UCC. "A determination of unconscionability generally requires a showing that the contract was both procedurally and substantively unconscionable when made — i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party." (Internal quotation marks omitted.) Hottle v. BDO Seidman, LLP, supra, 268 Conn. 719. To determine the unconscionability of a premarital agreement when made, it is necessary to look at two aspects of the agreement: 1) whether the contract was knowingly and voluntarily made; and 2) whether the terms of the contract were repugnant. "The court's first inquiry, then, is to ascertain whether the agreement complies with the ordinary principles of contract law and whether its terms and the circumstances surrounding its execution are such as to demonstrate that the parties were aware of their legal rights and their respective assets and liabilities, and proceeded by the agreement to alter those rights in a fair and voluntary manner." McHugh v. McHugh, supra, 181 Conn. 488.
The act endorses the McHugh procedural criteria by specifying three impediments to the enforceability of a premarital agreement. Section 46b-36g(a) states: "A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that: (1) Such party did not execute the agreement voluntarily; or . . . (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; or (4) Such party was not afforded a reasonable opportunity to consult with independent counsel." In deciding the motion in limine, this court considered the circumstances and disclosures of the parties at the time the plaintiff executed the premarital agreement, including all the procedural criteria of the act. The court determined that the plaintiff was not procedurally disadvantaged. Dornemann v. Dornemann, supra, 48 Conn.Sup. 502.
"While determinations of unconscionability are ordinarily based on the court's conclusion that both the procedural and substantive components are present, there have been exceptional cases where a provision of the contract is so outrageous as to warrant holding it unenforceable on the ground of substantive unconscionability alone." (Internal quotation marks omitted). Hottle v. BDO Seidman, LLP, supra, 268 Conn 720-21. Section 46b-36d of the act allows the parties to a contemplated marriage to contract as to the right to manage and control property during a marriage. It specifically permits the parties to provide contractually for divorce by predetermining rights of alimony, property division, inheritance, life insurance benefits, retirement plan benefits and "[a]ny other matter, including their personal rights and obligations." § 46b-36d(9). The parties in this case made just such a contract. Their premarital agreement does not go beyond the bounds contemplated by the act.
Section 46b-36c of the act specifies that the doctrine of consideration does not apply to enforceability of a premarital agreement. The fulfillment of the marriage is itself payment for execution of the contract. "[W]here the parties are free to contract, their agreement should not be set aside . . . unless fraud has been perpetrated, undue influence exerted, material facts affecting the subject matter misrepresented or suppressed, or advantage taken of a position of confidence and trust to obtain an unconscionable advantage over the party, in which case a court of equity may grant relief from such oppression." (Internal quotation marks omitted). Noble v. White, 66 Conn.App. 54, 58, 783 A.2d 1145 (2001). The issue is not one of the fairness of the contract. The premarital agreement in this case is one-sided. It provides for dramatically less than an equal division of assets acquired during the contemplated marriage. It allows the defendant to keep assets acquired with his earnings in his own name during the marriage. It denies alimony to the plaintiff in the event of divorce. The plaintiff, nevertheless, made a meaningful choice in executing the document. She now rues that choice. None of the provisions of the premarital agreement surprises or shocks the conscience or amounts to unconscionability as a matter of law. "Courts do not unmake bargains unwisely made. Absent other infirmities, bargains moved on calculated considerations, and whether provident or improvident, are entitled nevertheless to sanctions of the law." Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 21-22, 420 A.2d 1142 (1979).
II UNCONSCIONABILITY WHEN ENFORCEMENT IS SOUGHT
The plaintiff argues that the premarital agreement is unenforceable because it is unconscionable at this time. General Statutes § 46b-36g(a) states: "A premarital agreement or amendment shall not be enforceable if the party against whom enforcement is sought proves that: . . . (2) The agreement was unconscionable . . . when enforcement is sought . . ." Although the act is modeled upon the Uniform Premarital Agreement Act (UPAA), 9C U.L.A. 35 (2001), it has been adapted to Connecticut common law. Whereas the UPAA does not address the possibility of unconscionability at the time of enforcement, the act specifically does so. There is no reason to assume that unconscionability when enforcement is sought must be defined in the same way as unconscionability at the time of execution. Neither the UCC nor the UPAA provides guidance or standards for a look at unconscionability of an agreement at the time of enforcement. The common law as to validity of premarital agreements when enforcement is sought has been expressed by our Supreme Court in McHugh v. McHugh, supra, 181 Conn. 482. The act comports with Connecticut case law. Without using the word "unconscionable," the McHugh case requires a look at whether "the circumstances of the parties at the time of the dissolution are so far beyond the contemplation of the parties at the time the agreement was made as to make enforcement of the agreement work an injustice." McHugh v. McHugh, supra, 181 Conn. 489. Our Supreme Court has, thus, provided the working definition for unconscionability at the time of enforcement.
The act was drafted by a committee of the Family Law Section of the Connecticut Bar Association. Representing the Family Law Section, Edith McClure testified at a hearing of the judiciary committee of the General Assembly on March 17, 1997. McClure advised the committee that "[t]he Uniform Act . . . has the requirement that the agreement be fair when it is executed. In other words, back at the time before the marriage occurs. But has no provision to look at that again at the time the enforcement is sought. And as we all know, things happen. Particularly in a long marriage. And so there is a provision in our draft that provides for a second look and a look at whether the agreement is unconscionable at the time that enforcement is sought. Of course, unconscionable goes beyond just fairness. It is that "gut" reaction of something just being wrong." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7, 1995 Sess., p. 2239. Although the McHugh decision does not specifically use the word "unconscionability" in considering the present enforceability of a premarital contract, the written testimony of the Family Law Section shows that the drafters of the act equated the test for unconscionability at the time of enforcement with the standard enunciated in McHugh. The Family Law Section wrote: " McHugh speaks of a test of conscionability (fairness) at the time of enforcement but leaves uncertain whether this test also applies to spousal support provisions as well as property provisions." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7, 1995 Sess., p. 2493. "[T]estimony before legislative committees may be considered in determining the particular problem or issue that the legislature sought to address by the legislation . . . This is because legislation is a purposive act . . . and, therefore, identifying the particular problem that the legislature sought to resolve helps to identify the purpose or purposes for which the legislature used the language in question." (Citations omitted; internal quotation marks omitted). Dowling v. Slotnik, 244 Conn. 781, 804, 712 A.2d 396 (1998), cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S.Ct. 542, 142 L.Ed.2d 451 (1998).
Although the act does not explain the meaning of "unconscionability" as it may apply at the time of enforcement of a premarital agreement, the McHugh case offers two examples of circumstances that might qualify as unconscionable. "[W]here a marriage is dissolved not because it has broken down irretrievably, but because of the fault of one of the parties, an antenuptial waiver of rights executed by the innocent party may not be enforceable, depending upon the circumstances of the particular case and the language of the agreement . . . Likewise, where the economic status of parties has changed dramatically between the date of the agreement and the dissolution, literal enforcement of the agreement may work injustice. Absent such unusual circumstances, however, antenuptial agreements freely and fairly entered into will be honored and enforced by the courts as written." (Citations omitted.) McHugh v. McHugh, supra, 181 Conn. 489.
Premarital agreements are not necessarily made in advance of marriage in order to be fair to each party in the event of divorce. The act imposes no requirement of fairness of the bargain. To the contrary, the act permits the parties to bypass consideration of the usual criteria by which a court would determine fairness. At § 46b-36d(a)(4), for example, the act specifically allows the elimination of spousal support, superseding the provisions of General Statutes § 46b-82. The act permits parties to bind themselves by contract to a disposition of property, life insurance and retirement assets upon divorce. § 46b-36d(a)(3), (6), (7). The parties may thus override the court's consideration of General Statutes § 46b-81 for division of property at the time of divorce in accordance with the criteria set forth in that statute. "In this regard, it is necessary to distinguish between the violation of statute and the informed and voluntary waiver of rights created by statute. The former is prohibited while the latter is typically the object of such agreements." McHugh v. McHugh, supra, 181 Conn. 488.
This court adopts as the standard for unconscionability when enforcement is sought the criterion laid down in McHugh. Thus, the facts of this case must be examined to determine whether the circumstances of the parties at the time of the dissolution are so far beyond the contemplation of the parties at the time the agreement was made as to make enforcement of the agreement work an injustice. Although the plaintiff was not employed for several months before the engagement and marriage, she had a college education and several years of self-employment prior to the marriage. The terms of the premarital agreement do not throw the plaintiff out into the world without resources. By dint of her health, education and work experience, the plaintiff has the ability to support herself. The plaintiff had trust funds and little else in the way of assets prior to the marriage. The trust funds have grown in value. The plaintiff is to receive $800,000 by the terms of the premarital agreement. Her asset position is greatly improved.
The defendant was employed in 1997, and earning several millions of dollars per year in income. His earnings have diminished substantially, but the diminution of income was anticipated at the time of the marriage. The defendant will be required to provide fair sums to support the children. His retirement plan will provide support for the children in the event of his untimely death. The defendant's assets have more than doubled since the date of the marriage. That circumstance could be reasonably anticipated, given the defendant's income and conservative investments. The plaintiff was aware of the disparity in the parties' assets when she made the agreement. The assets of the parties were vastly different at the outset of the marriage; they are vastly different now. Primary blame has not been assessed against either side for the breakdown of this relatively short marriage. It is not even necessary to go to the next level to determine if changed circumstances are so far beyond the initial contemplation of the parties as to work an injustice at the time of enforcement. There are no circumstances now existing that were beyond the contemplation of the parties at the time the premarital agreement was executed. Even if the enforcement of a contract seems unduly to burden one of the parties, the court will not depart from basic principles of contract law to revise and improve the contract. See Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 506, 746 A.2d 1277 (2000). The plaintiff has not met her burden of proving unconscionability of the premarital agreement when enforcement is sought.
III ORDERS
The court has considered all the criteria of General Statutes §§ 46b-56, 46b-56c, 46b-62, 46b-81, 46b-82, and 46b-84 in light of the evidence presented. The provisions of the parties' premarital agreement bind the court, except as the defendant has stipulated to modifications favorable to the plaintiff. The following are the orders of the court:
1. The marriage of the parties is dissolved on the ground of irretrievable breakdown.
2. The parties shall have joint legal custody of the minor children. Primary residence of the children shall be with the plaintiff. The parties shall make joint decisions relating to the children's health, religious upbringing, education, extracurricular activities, use of motorized vehicles and general welfare. If the parties are not able to agree upon a school to be attended by a child, the plaintiff's decision shall control.
3. The defendant shall have reasonable, liberal and flexible parenting time with the children, but at a minimum:
a. Weekends. Alternate weekends from Thursday after school (or 12:00 noon if there is no school) to Monday morning delivery to school (or 12:00 noon if there is no school.) If the Monday immediately following the defendant's weekend is a school holiday, the defendant's weekend shall add twenty-four hours to include the holiday. CT Page 12638
b. Mid-week. Two evenings for dinner with the children, individually or jointly, in the week following the alternate weekend with the plaintiff. The defendant shall provide three days' notice to the plaintiff of his intent to utilize the dinner visitation.
c. Summer (from end of one school year to the beginning of the next school year). Half the summer, in two-week segments to each party. On or before April 15, the defendant shall notify the plaintiff in writing of his preference for summer weeks. The plaintiff, in writing, may reject the defendant's choices within two weeks of the notice. If the plaintiff rejects the choices, then the defendant shall select different two-week periods that are no less than ten days before or after the rejected dates. If the parties are still unable to reach agreement on the summer schedule by May 15, then each party shall have the children for fourteen-day periods alternating throughout the summer, beginning with the defendant's having the children the day after school lets out.
d. Christmas break (December 21 through January 2). With the defendant in even years; with the plaintiff in odd years. If the children are out of school before December 21, or after January 2, the additional days out of school shall be spent with the party who does not have the Christmas break that year.
e. February school vacation (end of school on Wednesday to return to school on Monday). With the defendant every year.
f. Spring school break. In even years, the first of the two weeks of spring break shall be with the plaintiff and the second week with the defendant. In odd years, the first week shall be with the defendant and the second week with the plaintiff.
g. Easter. With the defendant in even years; with the plaintiff in odd years. If Easter overlaps with the spring break, the spring break schedule shall take precedence.
h. Mother's/Father's Days (9 a.m. to 6 p.m.) Mother's Day shall always be with the plaintiff. Father's Day shall always be with the defendant.
i. Halloween. The children shall be with the plaintiff every Halloween.
j. Thanksgiving (end of school on Wednesday to return to school on Monday). The children shall be with the plaintiff every Thanksgiving.
k. Birthdays. The plaintiff's birthday (October 9) shall always be with the plaintiff; the defendant's birthday (October 3) shall always be with the defendant. The party who has the children on the children's birthdays shall make the birthday child available to the other party for a few hours in the afternoon or evening of the birthday.
l. The summer, holidays, and special occasion schedules shall supersede the usual weekend and mid-week schedule.
4. The parties shall meet at regular intervals of three months to discuss and agree upon the forthcoming parenting schedule. For the months of January, February and March, the parties shall make the schedule on or before October 15; for the months of April, May and June, the parties shall make the schedule on or before January 15; for the months of July, August and September, the parties shall make the schedule on or before April 15; for the months of October, November and December, the parties shall make the schedule on or before June 15. If either party should find it necessary to request an adjustment to the schedule, he or she shall provide at least four weeks' notice to the other party. If the other party is unable or unwilling to accommodate the request, the requesting party shall make other arrangements for the children for the time that he or she cannot care for the children. Each party shall accommodate the reasonable requests of the other party to make the children available for extended family celebrations and special events. In the absence of an agreement to modify the schedule, the parties shall adhere strictly to the schedule set forth herein.
5. If a party needs to be away from the children on an occasion when he or she is scheduled to be with the children, then the party who needs to be away shall offer the children to the other party before finding other coverage from family, friends or employees.
6. Neither party shall schedule events and activities for the children, including but not limited to school events, parties, sports participation, and music lessons, on the other party's time with the children without first gaining the approval of the other party. The parties shall confer and agree before scheduling any ongoing activities for the children that will occur on Thursdays, Fridays or weekends. When the children are invited to special activities, the parties shall share the invitation information so that the party who has the children may decide upon the children's attendance.
7. Each party is entitled to daily telephone contact with the children. If the children are not staying overnight at the primary residence of the party who has them, the party who has the children shall provide to the other party a telephone number where the children can be reached each day. If the children will not be available to answer a telephone call, then the parent who has the children will initiate a daily telephone call from the children to the other party, at times and numbers provided by the other party.
8. Each party shall notify the other in advance of travel plans, together with emergency contact telephone numbers. When the children travel, the full itinerary shall be provided to the other party at least fourteen days in advance, if possible, including flight information, lodging location and emergency contact information.
9. A responsible, English-speaking adult, who is acquainted with the children, shall accompany the children on all domestic and international flights.
10. Either party planning to relocate his or her primary residence more than fifty automobile travel miles from Greenwich, Connecticut shall give written notice to the other party at least ninety days before the move. If the non-moving party objects in writing within thirty days of the notice, the relocation of the children shall not occur until the parties have reached a written agreement or further order of the court.
11. Each party shall keep the other informed at all times of current home telephone numbers and cell phone numbers.
12. Each party shall be entitled to attend school events, sporting events, extracurricular activities, church events, and camp activities in which the children are participating or concerned, such as games, practices, parent/teacher conferences and recitals. Both parties shall be free to interact with the children at such events. Each party shall keep the other informed of any such event or activity that comes to the notice of each party.
13. Each party shall be entitled to complete and full information from every physician, therapist, psychologist, psychiatrist or similar professional attending the children for any reason. Each party shall be entitled to complete and full information from every teacher and school giving instruction to the children.
14. If either party has knowledge of any illness or accident affecting the health, safety or welfare of the children, the party shall promptly notify the other party and permit reasonable visitation with the children during any time of illness or injury.
15. The parties shall exert every reasonable effort to promote free access and unhampered contact between the children and each of the parties. The parties shall foster feelings of affection between the children and each party. Each party shall refrain from doing anything to estrange the children from the other party or to injure the opinions of the children as to the parties. Each party shall encourage the free and natural development of the children's love and respect for the other party. Neither party shall disparage the other party to, or in the vicinity of, the children.
16. The parties shall not communicate through the children. Neither pay shall discuss with the children any issues relating to the dissolution of the marriage or finances of the parties.
17. Neither party shall take the children to unlicensed counselors, such as psychics, clairvoyants or spiritual healers, without the prior written consent of the other party.
18. The children shall continue to be known by the surname" Dornemann" during their minorities. They shall be enrolled in all schools, camps and extracurricular activities in that name. The parties shall discourage the children, and all other persons, from referring to anyone other than the parties as the children's "Mom" or "Dad," "Mother" or "Father."
19. The defendant shall hold the children's passports at all times when the children are not traveling abroad with the plaintiff. The defendant shall provide the passports to the plaintiff for her use promptly upon her request when she plans to travel abroad with the children.
20. The defendant shall pay child support to the plaintiff in the amount of four thousand two hundred and fifty dollars per child per month for a total of eight thousand five hundred ($8,500) dollars per month. Payment shall be made on the first day of each month commencing September 1, 2004. Payment of child support shall continue until the child attains the age of nineteen or the age of eighteen and the completion of high school, whichever shall occur sooner. Wage withholding shall be contingent.
21. There shall be no offsets or deductions against the payment of child support for any reason.
22. If the parties agree that the minor children should attend private schools or the plaintiff selects private schools because the parties are unable to agree, then the defendant shall pay as additional child support the costs of tuition, room and board, uniforms, equipment, student fees, extracurricular activities fees and books.
23. If the parties agree that the minor children should attend summer camps or travel that affords educational opportunities, then the defendant shall pay the fees and costs for the children to attend. The defendant shall pay the cost for one PSAT exam and one SAT exam for each child. The defendant shall pay the cost for college applications for each child up to a limit of six applications per child.
24. Each party shall pay one-half the cost for any tutors for the children.
25. Both parties place a high value on education. It is more likely than not that the parties would have provided support to the children for higher education or private occupational school if the family were intact. The defendant shall pay the costs for each child to attend four years of post-majority education. The costs shall include tuition, room and board, student fees, extracurricular activity fees, roundtrip travel twice per year between the school and the principal residence of the child, uniforms, equipment, books and supplies. The defendant's legal obligation for each child shall not extend beyond the cost of attending the University of Connecticut at Storrs in the year of attendance and shall cease when the child attains the age of twenty-three years.
26. So long as the obligation to pay child support continues, including but not limited to the possibility of post-majority educational support, the defendant shall maintain the children on medical and hospitalization insurance coverage available to him through BMG. If such insurance is no longer available to the defendant through BMG, then the defendant shall secure comparable health insurance for the children at his sole expense. The provisions of General Statutes § 46b-84(e) shall apply.
27. If the parties agree that a minor child requires orthodontia treatment or cosmetic dental work, then the defendant shall bear the full cost for any such treatment that is not covered by insurance.
28. The plaintiff shall bear the cost for the first $300 per calendar year per child for unreimbursed medical, dental, optical, psychological and prescriptive medication costs for the minor children. All such unreimbursed expenses above $300 per calendar year for each child shall be borne by the defendant. The obligation of the defendant to pay such unreimbursed expenses shall apply only after the plaintiff has provided written proofs to the defendant of her prior expenditure of the $300 that year for the child's health care.
29. The defendant shall pay to the plaintiff, as additional child support, ninety percent of daycare expense reasonably incurred by the plaintiff in order to enable her to work full-time.
30. No alimony is awarded to either party.
31. Each party shall be responsible for his or her own health care and insurance. If the plaintiff elects to continue on the defendant's health insurance plan through BMG, utilizing COBRA provisions, then the plaintiff shall bear the cost of that coverage. The defendant shall cooperate with the plaintiff to secure information necessary to implement the COBRA insurance coverage.
32. The plaintiff is awarded the 2001 Jeep Grand Cherokee automobile now garaged in Greenwich. The defendant shall forthwith produce all title documents now in his possession and sign all documents necessary to effectuate the transfer of title to the plaintiff. The plaintiff shall forthwith cause the Jeep to be registered and insured in her own name; the defendant shall pay the cost for the registration and the cost for one year of auto insurance in advance for the benefit of the plaintiff. After the transfer of title, the plaintiff shall indemnify and save harmless the defendant as to all other taxes, costs and expenses associated with the ownership and maintenance of the 2001 Jeep Grand Cherokee.
33. The defendant is awarded the Picasso lithograph, valued at $40,000, now in the possession of the plaintiff.
34. The defendant shall forthwith provide to the plaintiff a list of three pictorial works of art, at least one of which shall be worth $40,000 or more. Within thirty days of receipt of the list, the plaintiff shall select one of the three works. The defendant shall transfer that work to the plaintiff at the expense of the defendant immediately thereafter.
35. Either party may request that the other party produce for copying any family photographs taken during the parties' courtship and marriage. The cost of such copying shall be borne by the party requesting the copy. All photographs and documents now in the possession of the plaintiff that belonged to the defendant before the parties' courtship, shall be transferred by the plaintiff to the defendant forthwith.
36. On or before September 1, 2005, the defendant shall permit the plaintiff to have access to inspect the contents of any home at which she has claims to tangible personal property. The visit shall be during the daytime only and shall be under the direct supervision of the defendant or an agent selected by the defendant. After such an inspection, or in lieu of such inspection, the plaintiff shall submit to the defendant a list of the items she seeks from the home. She shall provide to the defendant an address within the continental United States for shipment. Upon receipt of such a list the defendant shall transport to the plaintiff's designated address those items that he chooses to send. He shall be under no obligation to send items that he does not wish to send.
37. The defendant shall retain sole ownership of the Wells Fargo joint bank account #8976. The defendant shall pay to the plaintiff forthwith the sum of $20,245 as lump sum property settlement.
38. As additional lump suit property settlement, the defendant shall pay to the plaintiff forthwith the sum of $800,000. No support moneys paid by the defendant to the plaintiff pendente lite shall be subject to recoupment by the defendant. The plaintiff shall have no tax liability for any support moneys paid to her by the defendant pendente lite.
39. The defendant shall forthwith pay to the plaintiff as and for additional legal counsel fees and costs the sum of $100,000. This sum is over and above the $150,000 already paid by the defendant pendente lite. The plaintiff shall have no tax liability for any attorney fee moneys paid to her or her legal counsel by the defendant pendente lite. The failure to award such counsel fees to the plaintiff, payable by the defendant, would substantially undermine the effect of the other financial dispositions of this judgment.
40. Except for personal property and lump sums otherwise specifically allocated by this judgment, the plaintiff is awarded sole ownership of all assets, real and personal, now in her name, title or possession.
41. Except for personal property and lump sums otherwise specifically allocated by this judgment, the defendant is awarded sole ownership of all assets, real and personal, now in his name, title or possession.
42. The plaintiff is solely responsible for payment of all liabilities listed on her financial affidavit presented to the court for the trial of this matter. The plaintiff shall indemnify and save the defendant harmless as to all such liabilities.
43. The defendant is solely responsible for payment of all liabilities listed on his financial affidavit presented to the court for the trial of this matter. The defendant shall indemnify and save the plaintiff harmless as to all such liabilities.
44. The attorney for the minor children is Joseph T. O'Connor. He is entitled to reimbursement for his services in the reasonable amount of $21,018.75. Of that amount, the plaintiff shall be responsible for payment of $2,100. The defendant shall be responsible for payment of the balance. Both parties shall make payment of the outstanding obligation on or before September 15, 2004.
45. The guardian ad litem for the minor children is Dr. Elizabeth Bergen. She is entitled to reimbursement for her services in the reasonable amount of $11,190. Of that amount, the plaintiff shall be responsible for payment of $1,100. The defendant shall be responsible for payment of the balance. Both parties shall make payment of the outstanding obligation on or before September 15, 2004.
46. The plaintiff shall be entitled to claim the children as exemptions for income tax purposes.
47. The plaintiff's maiden name is restored to her. Henceforth, she shall be known as Maryann Hegel-Dornemann.
Winslow, J.