Wilkes v. Wilkes

• Decision Date: 19 October 1999
• Docket Number: (AC 16904)
• Citation: 55 Conn. App. 313,738 A.2d 758
• Court: Connecticut Court of Appeals
• Parties: BEVERLY WILKES v. LAWRENCE WILKES

55 Conn. App. 313

738 A.2d 758

BEVERLY WILKES v. LAWRENCE WILKES

(AC 16904)

Appellate Court of Connecticut.

Argued December 2, 1998.

Officially released October 19, 1999.

O'Connell, C. J., and Foti and Spear, JS. William H. Narwold, with whom were John P. Ekberg III and, on the brief, Charles D. Ray and John P. McKinney, for the appellant-appellee (plaintiff).

Mary Ellen Wynn, with whom was Leah Pavetti Hogan, for the appellee-appellant (defendant).

Opinion

SPEAR, J.

The plaintiff, Beverly Wilkes, appeals from the judgment of the trial court that dissolved her marriage to the defendant, Lawrence Wilkes, and awarded her alimony. She claims that the trial court improperly (1) based the alimony award on clearly erroneous factual conclusions regarding the earning capacities of the parties, (2) approved an agreement that equally divided the parties' property even though the defendant had not made a full and frank disclosure of all his assets, (3) concluded that the plaintiff did not contribute to the defendant's assets after the parties separated, (4) excluded critical testimony relating to the defendant's marital infidelity and (5) denied her motion to open the original judgment of dissolution, which was based on the alleged fraud of the defendant.¹ We affirm the judgment of the trial court.

The trial court found the following facts. The parties were married on October 9, 1976, in Palm Beach, Florida. No children were born of the marriage. The defendant was a successful stockbroker who, at the time of the dissolution, was a senior vice president at a securities firm. The plaintiff was an attorney who had enjoyed a successful career working primarily in the field of commodities trading. At the time of the dissolution, the plaintiff had ceased practicing law in New York and had moved to Florida, where she had started a horse boarding business in October, 1994. In October or November, 1992, the plaintiff visited the defendant's office and demanded that either he terminate the employment of his female sales assistant or she would seek a divorce. After refusing to fire his assistant, the defendant asked the plaintiff for a divorce. Thereupon, the plaintiff suggested that neither party hire an attorney because she would prepare a separation agreement and thereafter commence a dissolution action. Together, the parties visited their certified public accountant to review a division of their assets and to ascertain the resulting tax consequences. Pursuant to their agreement, the parties divided their assets equally. Thereafter, the parties executed an agreement, effective as of June 1, 1993, that reflected the division of the parties' property and was to be used in the dissolution action.

The trial court found the agreement to be fair and equitable and incorporated it in the dissolution decree. The court dissolved the marriage, awarded the plaintiff $150,000 in counsel fees² and ordered periodic alimony in the amount of $8500 monthly to terminate "on the remarriage of the plaintiff, the death of either party, or further court order whether based on [General Statutes § 46b-86] or upon the expiration of six years, in all events despite any change of circumstances." This appeal followed.

I

The plaintiff first claims that the trial court's findings regarding the earning capacities of the parties were clearly erroneous because (1) the court relied on financial information from the defendant that was one year old at the time of trial, (2) concluded that the defendant's earning capacity was $515,000 per year despite evidence showing a substantially higher earning capacity and (3) failed to specify the plaintiffs earning capacity. We disagree.

"Our standard of review is well settled. We review financial awards in dissolution actions under an abuse of discretion standard.... [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did." (Citations omitted; internal quotation marks omitted.) Lake v. Lake, 49 Conn. App. 89, 91, 712 A.2d 989, cert. denied, 246 Conn. 902, 719 A.2d 1166 (1998). "[T]he factual findings of a trial court on any issue are reversible only if they are clearly erroneous.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... [W]here the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous." (Citation omitted; internal quotation marks omitted.) Rolla v. Rolla, 48 Conn. App. 732, 737, 712 A.2d 440, cert. denied, 245 Conn. 921, 717 A.2d 237 (1998).

Although the plaintiff claims that the trial court's factual findings that underpin the award of alimony are clearly erroneous, she does not challenge the award itself as an abuse of the trial court's discretion. She fails to assert or brief that any prejudice or harm at all flowed from the allegedly flawed factual findings.

The plaintiff complains that there is "no internal consistency in the trial court's memorandum of decision and no explanation of how the trial court arrived at its determination of the parties' respective earning capacities."³ The plaintiff cites Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 479 A.2d 826 (1984), for the proposition that "where a decision suffers from such internal problems, the court's financial awards must be reversed." In Ehrenkranz, the defendant claimed that "in arriving at its decision, the court made a serious error in computation which, under the circumstances of this case, amounted to an abuse of discretion." Id., 417. We agreed and reversed the judgment. That case is of no avail to the plaintiff here because, unlike the appellant in Ehrenkranz, she neither asserts nor briefs any claim that the trial court abused its discretion. Absent any challenge at all to the amount or term of the alimony award, we have no basis to conclude that the claimed erroneous fact-finding resulted in an abuse of discretion.⁴

II

The plaintiff next claims that the trial court improperly incorporated the June 1, 1993 separation agreement into the decree of dissolution because the defendant did not make a full disclosure of his assets, thereby rendering the agreement unfair and fraudulent. We disagree.

Resolution of this claim requires us to state certain additional facts. The plaintiff claims that the agreement was induced by fraud because the lack of formal financial affidavits meant that there was no full disclosure of assets by the defendant. She does not identify any undisclosed assets or income. The trial court found that "[t]he plaintiff examined the defendant's records at his office, he gave her copies of all documents and records she requested and he had a reasonable basis to assume she was acting on his behalf." The court went on to state that it was "satisfied that the parties did know the nature and value of their respective IRAs and other tax-deferred compensation, and that the values were roughly equal at the time the parties' assets were divided. It would be most inequitable to allow the plaintiff to retain the benefits of the agreement, which she prepared and which she now seeks to void." Moreover, in the body of the agreement, the parties represented that "each has fully and completely disclosed his or her income, assets and liabilities to the other party, and that neither he nor she is holding any undisclosed assets."

The plaintiff claims that this "mid-nuptial" agreement should be considered the same as premarital agreements that are protected by General Statutes § 46b-36g with respect to disclosure. Section 46b-36g (a) (3), which is applicable to premarital agreements executed on or after October 1, 1995, the effective date of Public Acts 1995, No. 95-170, precludes enforcement of a premarital agreement where, prior to execution, a party is "not provided a fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party . . . ." The plaintiff asserts that, even if § 46b-36g does not apply, the agreement was not fair and equitable as required by General Statutes § 46b-66.⁵ There is no merit to this claim because § 46b-36g (a) (3) requires "fair and reasonable disclosure," as opposed to more formal financial affidavits, and the trial court had the benefit of formal financial affidavits at the time it decided that the agreement was fair and equitable.

The trial court specifically found that the plaintiff was not credible with respect to her claim that she was not qualified to draft the agreement and that she was under extreme emotional stress when the assets were divided. In drafting the property agreement, the plaintiff received forms and assistance from her mother, who was an attorney licensed in Massachusetts with an "emphasis on matrimonial law in her practice." The court also noted: "Her recognized expertise in drafting complicated derivative agreements belies this claim." We are satisfied that the trial court, in reviewing all of the circumstances, properly found the agreement to be fair and equitable.

III

The plaintiff next claims that the trial court improperly concluded that she did not contribute to the defendant's assets after the separation occurred and that, as a result, the court failed to value the marital property as of the date of dissolution. The plaintiff claims that she referred accounts to the defendant from the time of the separation until well into 1996, and that those referrals made significant contributions to the defendant's business. In addition, the plaintiff maintained her own...