Opinion
NNHFA166060569
06-09-2016
Linda Rose Rondina v. James B. Leonard, Jr
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Karen Goodrow, J.
I. Procedural History
This action for dissolution of marriage was filed on February 23, 2016. The plaintiff filed a Motion for Alimony Pendente Lite (#107) on February 26, 2016. The defendant objects to the motion, and asserts that the prenuptial agreement of the parties dated November 30, 2015 bars an order for alimony pendent lite. A hearing was held on the motion on March 17, 18 and 29, 2016. The focus of the hearing was the enforceability of the prenuptial agreement. The court credits some, but not all, of the evidence presented by each of the parties.
II. Facts
Based upon a careful consideration of all of the evidence, the stipulations of the parties, and a review of the file and record, having afforded appropriate weight and credibility to the testimony of the witnesses and to the evidence, the court finds the following facts by a preponderance of the evidence.
The parties have known each other for approximately eighteen years, and lived together for approximately fifteen years. The parties obtained a marriage license from the town of Southbury, Connecticut on November 30, 2011. Pl.'s Ex. 3. On the same day, the parties signed a prenuptial agreement. Pl.'s Exs. 1, 4 & 6. On the same day as the marriage license was obtained, the plaintiff drove with the defendant to the office of Kevin Kennedy, the defendant's accountant, for the purpose of signing the prenuptial agreement. The defendant's attorney, Joanne Ryan, was also present. The parties met on two prior occasions to discuss the agreement, as well as other documents, with Kennedy. During the meeting on November 30, 2011, after the defendant met privately for approximately twenty minutes with Ryan and Kennedy, the plaintiff joined them. The plaintiff signed the prenuptial agreement, and it was notarized.
The exhibits are copies of the prenuptial agreement. The signature pages on Pl.'s Exs. 1 and 4 are not identical copies. The signature pages on Pl.'s Ex. 6 are identical to those on Pl.'s Ex. 4. All copies of the agreement are attached with two blank schedule pages, one entitled " Schedule A--Ms. Rondina's Separate Property" and the other entitled " Schedule B--Mr. Leonard's Separate Property."
The parties were married on December 12, 2011 in Southbury, Connecticut. Pl.'s Ex. 3. They resided at 7 Blackman Avenue, Bethel, one of the properties owned by the defendant. The defendant also owns a one-half interest along with his sister in the neighboring property at 9 Blackman Avenue. The properties were owned by the defendant prior to meeting the plaintiff. The property at 7 Blackman Avenue is a two-family house. The property at 9 Blackman Avenue is a one-family house. The plaintiff was aware that the defendant owned the Blackman Avenue properties prior to signing the prenuptial agreement. The defendant also owns a condominium located at 138 Bahia Vista Gulf in Venice, Florida. The plaintiff was present when the defendant purchased the Florida property. The defendant regularly rented the unit of 7 Blackman in which he did not reside, as well as 9 Blackman, and the Florida property (for part of the year).
The plaintiff is 67 years of age; the defendant is 79 years of age.
The defendant's sister is the wife of George Lacey and the mother of Daniel and James Lacey.
The parties have no joint bank accounts, and the plaintiff has no authority over the defendant's accounts. The defendant had control over his bank accounts until approximately August 2014, at which point the defendant's nephew, Daniel Lacey, began to control and maintain the defendant's accounts as power of attorney. Lacey also has power of attorney to make medical decisions for the defendant. The plaintiff has never had control over the defendant's finances, although prior to August 2014, she occasionally assisted the defendant in writing checks.
Plaintiff's Exhibit 11 is a document containing the living will and health care instructions of the defendant signed by the defendant on August 5, 2014. The document names the defendant's nephew, Daniel F. Lacey, as the defendant's health care representative. It also names the defendant's nephew, James B. Lacey, as the defendant's alternative health care representative. Attorney Joanne Ryan was one of the two witnesses on the documents. Pl.'s Ex. 11. Plaintiff's Exhibit 12, which is attached to Pl.'s Ex. 11 is the defendant's general power of attorney naming Daniel F. Lacey, and alternatively, James B. Lacey as attorneys-in-fact. Pl.'s Ex. 12.
Prior to the marriage in 2007, the defendant was diagnosed with dementia. His condition deteriorated prior to and during the marriage. The defendant never suffered any injuries related to dementia while living at home. However, his driver's license was revoked in March of 2014 after an incident when he became disoriented while driving. His daily routine was regimented and included walks in the neighborhood and visiting the neighbor's dogs. There was conflicting evidence regarding the defendant's ability to maintain his orientation during routine walks. Although the defendant's condition was worsening, the defendant was able to bathe, dress and generally care for himself without assistance until approximately March 2015. As the defendant's dementia worsened, his incoming mail caused confusion, at which point Daniel Lacey opened a post office box for the defendant from which Lacey would retrieve the mail.
Defendant's Exhibit B is a letter dated March 24, 2016 from Dr. Yvette Fernandez at Masonicare in Newtown, Connecticut addressed to " To Whom It May Concern." The letter indicates, in part, that the defendant has dementia, requires " 24/7" care, and is unable to make his own decisions. The court credits the evidence that the defendant has dementia and is unable to make decisions for himself. He was not competent to testify at the hearing.
During the marriage, the plaintiff was the defendant's main companion, and helped to take care of the defendant on a day-to-day basis. She had no authority over his finances or to make medical decisions. The defendant's nephew, Daniel Lacey, is the defendant's power of attorney and has control over the defendant's finances and medical decisions. Daniel Lacey, along with his brother, James Lacey, and his father, George Lacey, assisted the defendant with his daily needs. Daniel Lacey lived next door to the parties at 9 Blackman Avenue and would see the parties daily. Throughout Daniel Lacey's life, he and the defendant enjoyed an extremely close relationship.
Defendant's accountant previously served as power of attorney. Daniel Lacey testified that the defendant told him that the defendant did not trust the plaintiff to serve as power of attorney.
George Lacey's wife also assisted the defendant on occasion, particularly with medical insurance issues.
Daniel Lacey still resides at 9 Blackman Avenue, the property owned jointly by his mother and the defendant. Lacey is not presently paying rent.
The plaintiff continued to live with, and assist in the care of, the defendant until March 2015 when she moved from the marital home. The plaintiff testified that prior to moving, she sought reprieve from her duties, but was not supported either financially or emotionally by the defendant's family. Daniel Lacey testified that the plaintiff told him on more than one occasion prior to March 2015 that she intended to leave the defendant.
The plaintiff testified that she left the marriage in order to force the defendant's family members to provide proper care for the defendant. The court credits the plaintiff's testimony that her care-giver duties for the defendant became too much of a burden for her to bear. The court does not credit the plaintiff's testimony that she received minimal assistance from the defendant's family, nor that she left the marriage, in essence, to ensure that the defendant's family would provide proper care to the defendant. The court finds that the plaintiff left the defendant because she intended to end the marriage, and that the defendant's family did assist the plaintiff with the defendant both financially and emotionally.
Lacey's testimony contradicted that of the plaintiff. He testified that he and his family members did provide assistance to the defendant, and encouraged the plaintiff to take time away from her duties with the defendant. Lacey's father, George Lacey, also testified that he assisted in the care of the defendant, including daily excursions with the defendant for coffee and cemetery visits. George Lacey and his wife lived one-quarter to one-half mile from the parties. The court credits the testimony of Daniel and George Lacey that they helped to care for the defendant.
When the plaintiff left the marital home, she did not arrange for anyone to be with the defendant in her absence. Shortly after the plaintiff left, home health aides were hired in eight-hour shifts to care for the defendant. The defendant was ultimately placed in an assisted living facility on August 28, 2015. Although the defendant has moved from one facility to another, since August 2015, he has remained in a nursing home/assisted living facility.
By the time the plaintiff left the marital home, the defendant's condition had deteriorated to such a degree that he had been unable to speak, although he was able to communicate in some fashion. At some point after the plaintiff left the marital home, protective services became involved and care-givers were hired to provide care to the defendant prior to his move to the nursing home. Additionally, the defendant suffered a fall and broken hip on March 25, 2016.
On February 24, 2016, Attorney Joanne Ryan wrote a letter to the defendant in care of Daniel Lacey. Pl.'s Ex. 5. Although the letter references correspondence dated October 3, 2011 instructing " Linda" to review/revise the prenuptial agreement, Plaintiff's Exhibit 5 does not contain a copy of the October 3, 2011 letter. Plaintiff's Exhibit 5 does have attached to it lists of assets owned by both parties, which lists were referenced in Ryan's letter. Plaintiff's list of assets consists of a savings/checking account and an automobile, with no value designated to either asset. The defendant's list of assets includes the properties at 7 and 9 Blackman Avenue in Bethel, Connecticut, as well as the Venice, Florida property. None of the properties have designated values. The Blackman Avenue properties were acquired by the defendant in the 1980s, long before he met the plaintiff. Daniel Lacey testified that the plaintiff voiced concerns sometime around August 2014 that the amount of insurance on one of the properties was not sufficient in light of its value. Although the court credits Lacey's testimony, it is insufficient proof that the plaintiff was aware of the value of the properties prior to signing the prenuptial agreement, and the court credits plaintiff's testimony that before signing, she had no knowledge of the value. The plaintiff was with the defendant when he purchased the Florida property. The court infers by the plaintiff's attendance at the purchase that the plaintiff was aware of the value and character of the Florida property.
The defendant's list of assets attached to Pl.'s Ex. 5 also includes a savings/checking account, an IRA with Vanguard, life insurance, and an automobile. None of these assets have designated values, and the life insurance reference contains no value. The list also does not include the defendant's income. The plaintiff's list of assets does not reflect values with the exception of " 18K Jewelry, " which the court infers refers to jewelry valued at $18,000. The lists of assets for the plaintiff and the defendant accurately reflect the assets owned by the parties at the time of the signing of the prenuptial agreement, however, the lists of assets do not reflect the value of the assets with the exception of the plaintiff's jewelry. The list of assets do not reflect the parties' incomes or liabilities. The court credits the plaintiff's testimony that she was not provided with the list of the defendant's assets before signing the prenuptial agreement.
The plaintiff testified that she was unaware of the value of the defendant's assets prior to the signing of the prenuptial agreement, and that the value was not disclosed to her by the defendant, either directly or through a third party. The court credits this testimony with the exception of the Florida property. The plaintiff was aware of the value and nature of the Florida property because she was present at its purchase by the defendant. Before signing the prenuptial agreement, the plaintiff was not provided a Schedule B with the defendant's assets and liabilities. Furthermore, the attachment to Pl.'s Ex. 5 reflecting the defendant's list of assets contains no values for the assets, and does not contain a list of liabilities or the defendant's income. The plaintiff credibly testified that she never received the list of assets, but she was aware that the defendant owned the three properties.
The plaintiff was aware that the Florida property was rented four months out of the year at the rate of $3,000 per month. She was also aware that the other properties generated rental income.
The plaintiff was not aware of the defendant's income at the time of the signing of the agreement, and only became aware of his income after reviewing joint tax returns after the marriage. The parties filed joint tax returns during the marriage, with the exception of 2015, when the plaintiff filed individually. The defendant received a pension of $120,000 per year as a prior teacher, principal and superintendent, and he received a second pension in the amount of $10,000 per year from his twenty-five years of service in the National Guard. His pension checks were directly deposited into his individual bank account, and the plaintiff was not on the account.
The court shall set forth additional facts as is necessary for its analysis.
III. Discussion
" 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 . . . An antenuptial agreement is a type of contract and must, therefore, comply with ordinary principles of contract law . . . The duty of each party to disclose the amount, character, and value of individually owned property, absent the other's independent knowledge of the same, is an essential prerequisite to a valid antenuptial agreement containing a waiver of property rights . . . The burden is not on either party to inquire, but on each to inform, for it is only by requiring full disclosure of the amount, character, and value of the parties' respective assets that courts can ensure intelligent waiver of the statutory rights involved . . . Under ordinary circumstances, parties to an antenuptial agreement do not deal at arm's length; they stand in a relationship of mutual confidence that calls for the exercise of good faith, candor and sincerity in all matters bearing upon the agreement." McHugh v. McHugh, 181 Conn. 482, 485-87, 436 A.2d 8 (1980) (internal quotations and citations omitted).
" To determine whether an antenuptial agreement relating to property was valid when made, courts will inquire whether any waiver of statutory or common-law rights, or the right to a judicial determination in any matter, was voluntary and knowing." Winchester v. McCue, 91 Conn.App. 721, 727, 882 A.2d 143 (2005), quoting McHugh v. McHugh, supra, 181 Conn. at 486. Conn. Gen. Statutes Section 46b-36g provides, in relevant part, that 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 (2) The agreement was unconscionable when it was executed or when enforcement is sought; 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. " 'Fair and reasonable' disclosure refers to the nature, extent and accuracy of the information to be disclosed, and not to extraneous factors such as the timing of the disclosure." Friezo v. Friezo, 281 Conn. 166, 183, 914 A.2d 533 (2007). Although the disclosure need not be precise or exact, each party must provide the other with a general approximation of their income, assets and liabilities. Beyor v. Beyor, 158 Conn.App. 752, 121 A.3d 734 (2015). The prenuptial agreement in this case violates the statute in that there was not fair and reasonable disclosure by the defendant prior to the execution of the agreement.
Attached to the agreement are Schedules A and B, both of which are blank. The intent of the parties at the time of the execution of the agreement was that the schedules contain a list of each party's assets. No reasonable explanation was given by the defendant for the blank schedules. Instead, the defendant posits that he disclosed his assets prior to the execution of the agreement by way of the lists attached to Pl.'s Ex. 5, and a letter referenced in Pl.'s Ex. 5, which letter was not made part of Pl.'s Ex. 5 and was not made part of the record. However, the lists attached to Pl.'s Ex. 5 contain no values with the exception of the plaintiff's jewelry. The lists also contain no disclosure of the defendant's financial obligations or income. Failure to provide fair and reasonable disclosure of income prior to the execution of the agreement renders the agreement invalid. Oldani v. Oldani, 132 Conn.App. 609, 616, 34 A.3d 407 (2011).
The agreement was executed at the defendant's accountant's office in the presence of the accountant and the defendant's attorney. The parties met on prior occasions with the accountant about the prenuptial agreement. Although the statute does not require that financial statements be appended to the agreement, Friezo v. Friezo, 281 Conn. at 183, 184, the parties in the instant case clearly intended to do so. Rather than append blank schedules, it would have been relatively easy for the defendant's accountant, defendant's attorney and/or both to prepare a completed schedule which included a fair and reasonable disclosure of the amount, character and value of the defendant's property, along with the defendant's financial obligations and income. See Winchester v. McCue, 91 Conn.App. 721, 723-24, 882 A.2d 143 (2005) (wife intelligently waived right to husband's assets and income, and alimony where parties appended to agreement completed financial statements and husband's financial circumstances at time of dissolution were not so far beyond parties' contemplation to make enforcement unconscionable). Generally, the most effective method of satisfying the statutory obligation of disclosure is by appending to the agreement written schedules of the parties. Beyor v. Beyor, 158 Conn.App. 752, 121 A.3d 734.
Prior to executing the prenuptial agreement, the plaintiff possessed no independent knowledge of the value of the defendant's real estate, with the exception of the Florida property. The plaintiff also possessed no knowledge of the value of the defendant's other assets, the existence and amount of the defendant's liabilities, or the defendant's income. Moreover, the plaintiff's name was not on the deed to any of the properties. The only evidence offered by the defendant that the plaintiff had knowledge of the value of the real property was a conversation between Daniel Lacey and the plaintiff in August 2014, long after the prenuptial agreement was signed.
The plaintiff had no control over the defendant's finances, the parties shared no joint accounts, and the plaintiff's name was not on any of the defendant's accounts. The defendant's pension checks were directly deposited into his account, and the plaintiff was not on the account. The extent of the plaintiff's financial assistance to the defendant was to help him write checks. The plaintiff credibly testified that at the time she signed the agreement, she was unaware of the value of the defendant's assets, liabilities or income. Absent independent knowledge of the amount, character and value of individually owned property, the defendant had a duty of disclosure. McHugh v. McHugh, 181 Conn. at 486.
The plaintiff had knowledge prior to the execution of the agreement that the defendant owned three pieces of real estate. The plaintiff lived in one property with the defendant, which was located next to another property in which the defendant had an ownership interest. The court infers that the plaintiff was aware of the character of the Connecticut property because she lived in one and lived next door to the other. Also, the plaintiff had knowledge of the Florida property because she was with the defendant when he bought it and she had been at the property. The court infers that her presence at the property made her aware of its character, and her presence at the sale, gave her knowledge of the property's value. However, there was no evidence that the defendant disclosed to the plaintiff the value of the Connecticut real estate, the value of the defendant's other assets, his income, or his liabilities. Further, although the plaintiff learned of the defendant's income after the parties were married, there was no evidence that prior to the execution of the agreement, the defendant disclosed his income to the plaintiff or that she was aware of the defendant's income. To the contrary, the plaintiff credibly testified that she had no knowledge of his income prior to reviewing the joint tax returns after the marriage. Finally, assuming that the defendant's list of assets attached to Pl.'s Ex. 5 was disclosed to the plaintiff prior to the plaintiff executing the agreement, the list contains no values for the defendant's assets, nor any disclosure of liabilities or income.
Daniel Lacey testified that at some point prior to the plaintiff leaving the marital home, she expressed concern that the amount of insurance on one of the properties was insufficient to cover its value.
Defendant's disclosure was insufficient under the statute. Plaintiff has proven that the defendant's obligation to disclose to the plaintiff the amount, character and value of property, financial obligations and income prior to the execution of the agreement was not satisfied by the defendant, C.G.S. 46b-36g(a)(3), and that she had no independent knowledge of same. McHugh v. McHugh, infra . The prenuptial agreement is not enforceable. Before execution of the agreement, the plaintiff was not provided a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the defendant.
IV. Orders
1. The prenuptial agreement of the parties is not enforceable because, before execution of the agreement, the plaintiff was not provided with a fair and reasonable disclosure of the amount and value of the defendant's property, financial obligations and income.
2. Counsel shall contact the case-flow coordinator to schedule an evidentiary hearing on the plaintiff's Motion for Alimony Pendente Lite (#107) to address the statutory factors in C.G.S. Section 46b-82.
At the hearing, the parties focused on the enforceability of the prenuptial agreement. The parties shall have the opportunity to be heard on the substantive issue of alimony pendente lite, in consideration of the statutory factors.