Mckenna v. Delente., Nos. 28681, 29433.

• Citation: 2 A.3d 38,123 Conn.App. 146
• Decision Date: 10 August 2010
• Docket Number: Nos. 28681, 29433.
• Court: Appellate Court of Connecticut
• Parties: Peter McKENNA v. Roberta DELENTE.

123 Conn.App. 146

2 A.3d 38

Peter McKENNA

v.Roberta DELENTE.

Nos. 28681, 29433.

Appellate Court of Connecticut.

Argued Jan. 14, 2010.

Decided Aug. 10, 2010.

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Laurel Fedor, for the appellant (defendant).

Norman A. Roberts II, for the appellee (plaintiff).

HARPER, ALVORD and BORDEN, Js.

BORDEN, J.

In this consolidated appeal, the defendant, Roberta Delente, ¹ appeals from the judgments of the trial court dissolving her marriage to the plaintiff, Peter McKenna, and denying her motion for contempt. On appeal, the defendant claims that the court: (1) improperly concluded that the parties' premarital agreement was enforceable; (2) lacked subject matter jurisdiction to order the terms and interest regarding her repayment of loans and promissory notes to the plaintiff; (3) improperly determined the “Operative Event” date as defined in the parties' premarital agreement; (4) abused its discretion by (a) not awarding her a portion of the plaintiff's pension plan, (b) failing to reimburse her for contributions she made to the marital property and (c) not awarding her attorney's fees; and (5) improperly found that the plaintiff was not in contempt for violating Practice Book § 25-5(a)(1). We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's consolidated appeal. The parties were married on August 31, 1999, in New York. The plaintiff is a retired former partner with the law firm of Wachtell, Lipton, Rosen and Katz. For several years prior to and throughout the early stages of their marriage, the defendant, who was born in Brazil, was employed as a professional model. At the time of trial, the plaintiff was seventy years old and in poor health, and the defendant was forty-two.

On August 26, 1999, five days prior to their marriage, the plaintiff and the defendant entered into a premarital agreement. Each was represented by independent counsel at the time the agreement was executed. Under the terms of the agreement, the parties, inter alia, retained control of and the absolute right to their separate property. The only marital property contemplated by the agreement was the parties' real property located at 1 Stallion Trail in Greenwich (Greenwich property). Title to this property was held by the parties as joint tenants with rights of survivorship. The agreement also contained a choice of law provision specifying that it was to be construed and enforced in accordance with the laws of New York.

The agreement further provided that upon the occurrence of an “Operative Event,” the plaintiff was to pay the defendant a “Distributive Award,” the amount of which was to be determined by the length of time between the parties' wedding date and the “Operative Event” date. Specifically, the “Distributive Award” provided for a payment of $50,000 to the defendant if the date of the “Operative Event” was before the parties' first anniversary, and a payment of $100,000 if the “Operative Event” occurred on or after their first anniversary but before their second.

² An “Operative Event” was defined in the agreement as the earliest of the following to occur: “commencement of an action for a judgment of divorce, separation ... or annulment of a voidable marriage; or ... [w]ritten notice by one party to the other party ... of an intention to seek a judgment of separation, divorce ... or annulment of a void marriage.”

On September 28, 1999, less than one month after the parties' marriage, the plaintiff issued to the defendant a notice of an “Operative Event,” as defined by the agreement. The parties later reconciled, and on January 7, 2000, entered into a modification agreement. The modification agreement declared the first notice null and void and ratified all other terms of the premarital agreement “as if no Operative Event [n]otice ... had ever been sent.”

The parties' attempt at reconciliation ultimately failed, and on August 28, 2000, three days before their first anniversary, the plaintiff sent the defendant a second notice of an “Operative Event,” which indicated that he intended to seek a judgment dissolving their marriage. The defendant acknowledged receipt of the second notice by a return letter dated September 13, 2000.

On September 2, 2005, the plaintiff filed an amended complaint seeking a dissolution of his marriage to the defendant, claiming that the marriage had broken down irretrievably. In the second count of his amended complaint, the plaintiff alleged the existence of the premarital agreement and sought in the prayer for relief to enforce its terms. ³ The defendant's amended answer, ⁴ filed September 20, 2006, pleaded by way of a general denial to the existence of the agreement. ⁵ No special defenses were filed at that time.

The trial commenced on September 19, 2006. On September 21, the plaintiff's witness, Eleanor Alter, testified as an expert in New York domestic relations law. Specifically, Alter testified on direct examination that in the absence of any affirmative defenses, the agreement was enforceable under New York law. The bulk of Alter's testimony, particularly as elicited by the defendant on cross-examination, concerned the adequacy of the second notice of “Operative Event,” rather than the enforceability of the agreement.

Following redirect examination by the plaintiff, the court itself addressed its own questions with Alter concerning the agreement. The court raised, inter alia, New York Domestic Relations Law § 236, pt. B 3 (McKinney 1999), ⁶ the New York statute controlling premarital agreements. The court inquired of Alter whether, pursuant to the New York statute, it was required to make a determination that the agreement was fair and reasonable. Alter responded that under New York law, the issue concerning whether the terms were fair and not unconscionable applied only to certain provisions of the agreement, not to the agreement as a whole. At no point did the court ask specifically of Alter whether, in her opinion, the terms of the parties' agreement were fair and not unconscionable.

On October 23, 2006, nearly five weeks after Alter testified, the defendant, via new counsel, ⁷ filed a new pleading entitled “Defendant's Amended Cross-Complaint with Special Defenses.” The new pleading included two special defenses that challenged the enforceability of the premarital agreement. The first claimed that the agreement was obtained through misrepresentation and nondisclosure of material facts, and the second claimed that the agreement was unconscionable. The plaintiff objected to the defendant's attempt essentially to amend her answer at that point in the dissolution proceedings to include the new special defenses, and the court sustained the objection. The following day, the defendant filed a formal motion for permission to amend her cross complaint and allege the special defenses, which the court denied. The court determined that granting the motion, inter alia, would have unduly delayed the dissolution action.

Nearly two months later, during her cross-examination of the plaintiff, the defendant attempted to offer a certain 1999 tax related document into evidence. The defendant claimed that the document was necessary to demonstrate that the plaintiff had not made a fair disclosure of his finances when the parties entered into the premarital agreement and that the agreement, therefore, was unconscionable under General Statutes § 46b-36g. ⁸ The plaintiff objected on the ground that the document was beyond the scope of the pleadings. He argued that because the defendant's motion to allege special defenses was denied and her general denial in the operative answer challenged only the existence of the agreement, evidence pertaining to the validity and alleged unconscionability of the agreement was inadmissible. In response, the defendant argued that even if the document originally was inadmissible, the plaintiff nevertheless had waived his right to object to this evidence by first offering the testimony of his expert.

Following extensive argument, the court sustained the plaintiff's objection and ruled that any evidence that purported to challenge the validity of the agreement was inadmissible. The court, relying on Practice Book § 10-50, concluded that the defendant's failure to plead specially the defense of unconscionability required the exclusion of this evidence. Furthermore, the court concluded that the plaintiff had not waived his right to object to the admission of such evidence.

By memorandum of decision filed December 20, 2007, the court dissolved the parties' marriage. The court found that the defendant's general denial as to the existence of the premarital agreement was insufficient to attack the validity of the agreement and concluded, therefore, that the agreement was enforceable. The court thereafter entered financial orders in accordance with the terms and conditions of the agreement. The court found that the “Operative Event” occurred on August 28, 2000, three days before the parties' first anniversary, and determined that the defendant was therefore entitled to a $50,000 “Distributive Award,” which the plaintiff has already paid to the defendant. No alimony was ordered, the parties retained their respective rights to all separate assets as expressed in the premarital agreement, and the defendant was not awarded any rights as to the plaintiff's pension plan. The plaintiff also was awarded title to the Greenwich property, which was ordered to be sold immediately. All carrying costs ⁹ associated with the property were ordered to be paid by the plaintiff, and, after that property was sold, he was to be reimbursed for one half of all carrying costs he had advanced from the “Operative Event” date through the closing date. The balance of the remaining proceeds was to be divided equally between the parties.

The court's...