Seder v. Errato

211 Conn.App. 167

272 A.3d 252

Lauren T. SEDER

v.Robert M. ERRATO

AC 43379

Appellate Court of Connecticut.

Argued January 5, 2022

Officially released March 15, 2022

Daniel J. Krisch, Hartford, for the appellant (defendant).

Michael S. Taylor, Hartford, with whom were Brendon P. Levesque, Hartford, and, on the brief, Scott T. Garosshen, Hartford, for the appellee (plaintiff).

Cradle, Alexander and Eveleigh, Js.

EVELEIGH, J.

In this dissolution of marriage action, the defendant, Robert M. Errato, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Lauren T. Seder, and challenges the trial court's financial orders and award of attorney's fees. On appeal, the defendant claims that the court improperly (1) refused to enforce the parties’ prenuptial agreement and (2) ordered the defendant to pay $280,000 in attorney's fees. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The parties first met in October, 1998, at the Oakdale Theater in Wallingford, which was operated by the defendant. On October 10, 2003, the parties were married in Fort Meyers, Florida. This was each party's third marriage. Their marriage was good for the first few years, but a breakdown of the relationship began around 2007 or 2008. By the spring of 2014, the plaintiff came to believe that the marriage was beyond saving. The parties discussed and negotiated their separation in 2014, but that process was not successful. Collaboration eventually gave way to litigation.

The present dissolution action was filed by the plaintiff on May 12, 2015. The parties continued to discuss amicable terms to resolve the divorce and took no action to further their respective cases until the fall of 2015. On October 2, 2015, the plaintiff filed a motion for alimony pendente lite, which was later granted by the court. The dissolution trial was then held over nineteen days between May 1, 2017, and June 26, 2019. There was also a multiday hearing on the defendant's motion to modify alimony pendente lite in the middle of trial, which resulted in testimony and other legal proceedings covering a total of twenty-three days.

In a memorandum of decision dated August 29, 2019, the court dissolved the parties’ marriage and ordered the defendant, among other things, to pay the plaintiff periodic monthly alimony in the amount of $2500 and a lump sum alimony payment in the amount of $450,000. The court also ordered the defendant to contribute to the plaintiff's legal fees and costs in the amount of $250,000. This appeal followed.

The plaintiff subsequently moved for an award of appellate attorney's fees. On December 4, 2019, the defendant filed his opposition thereto. On December 16, 2019, the trial court ordered the defendant to contribute an additional $30,000 to the plaintiff's legal fees for her defense of this appeal, finding that the plaintiff lacked access to liquid funds to pay for her own legal fees. Thereafter, the defendant filed an amended appeal. Additional facts and procedural history will be set forth as necessary.

I.

The defendant first claims that the trial court improperly refused to enforce the parties’ prenuptial agreement and argues that undisputed testimony and documents established the terms of that agreement. The plaintiff, on the other hand, takes exception to the characterization of the defendant's claim. She argues that although the defendant suggests that the trial court erred in refusing to enforce the alleged prenuptial agreement, the court never reached enforcement because the court properly concluded that there were no terms of an agreement or any associated financial disclosures that it could construe, much less enforce. We agree with the plaintiff.¹

In its memorandum of decision, the court set forth the following factual background: "The parties both testified that they agreed to have a prenuptial agreement. The defendant testified that the couple started discussing a prenuptial agreement as early as August of 2003. He claims that it was the plaintiff's idea to have such an agreement and that they both agreed that they would not marry without one. The defendant testified that at the time of the marriage, in the fall of 2003, he had assets in excess of ten million dollars .... Surprisingly, despite the defendant's wealth and dealings with many lawyers through his different business ventures, he testified that he downloaded a generic prenuptial agreement from the Internet and filled it out himself. The evidence is somewhat contradictory on this issue. At one point, the defendant claimed that the plaintiff did the first draft of the agreement, but now testified that he did it as a proactive move. Regardless, by early October of 2003, there was an agreement in draft.

"The plaintiff testified that she prepared a financial disclosure as part of the process and gave the one ... page form to the defendant. She agreed that the defendant did some type of financial disclosure as well, and it might have been on the same one ... page form that she had used. When questioned by the plaintiff's counsel about the nature of the defendant's financial

disclosures to the plaintiff, the defendant was rather unsure of what was specifically included in his disclosure. He did admit that he had not updated the value of those assets prior to the agreement being finalized. The defendant did state that his ten million dollars ... was more like ten million, four hundred thousand, to ten million, five hundred thousand dollars ... by the first few days of October of 2003. He could not, with any assurance, recall if he had disclosed all of his various bank accounts and their balances, or if he had disclosed his capital gains income or not. The defendant likewise could not offer an opinion as to whether or not such a disclosure was of value and should have been included on his financial disclosure to the plaintiff.

"The defendant did show a draft prenuptial agreement to Attorney Thomas Benneche who had done work for the defendant on some of the Oakdale Theater issues and other business matters throughout the 1990s. Attorney Benneche, who practiced primarily real estate law, testified that he had met with his client on another matter, and at the end of the meeting, the defendant asked him to look over the agreement. Benneche obliged his client. He made a copy of the draft to use for the discussion. He told the defendant that there were no disclosures attached to the draft and that was a problem. He also suggested to him that he should make some other changes. Benneche testified that he never saw an executed agreement, never saw a revised draft of the agreement, never saw any of the financial disclosures and never spoke to the plaintiff about the agreement again until this litigation commenced. The attorney also admitted that he had no knowledge of the financial disclosure that had been made by the defendant including any of the defendant's pending lawsuits and any estimated value of any recovery as a result of such lawsuits. Benneche also testified that he did not take anyone's acknowledgement on the prenuptial

agreement and that he cannot find the copy he made when the defendant was in his office in 2003 some sixteen ... years earlier.

"The plaintiff testified that she signed the agreement, but at that time the defendant had not signed it. She claims that she gave duplicate originals to the defendant, but after that, she never saw an executed copy, nor did she ever receive an executed agreement or copy. It was only years later, once marital difficulties had arisen, that she asked the defendant for a copy of the agreement. She testified that she has no clear recollection as to what the terms might have been or what the defendant's financial disclosures might have included. It was her testimony that although they were living together informally prior to the marriage and she had some idea of the defendant's business ventures from general conversation, he was a very private person about his affairs. She knew he had a lot of money, more than she had, and that they were living well. The defendant also testified that he did not have a copy of a signed agreement." Therefore, no signed agreement was ever presented to the court.

The court explained that "[t]he defendant attempted to offer collateral evidence as to the content of the prenuptial agreement by way of a proposed defendant's exhibit ‘C.’ The plaintiff filed a motion in limine to preclude such an exhibit .... The court ruled that it would hold an evidentiary hearing on the issue. That hearing took place on January 16, 2019. After the hearing, the court granted the plaintiff's motion in limine and precluded the defendant's proposed exhibit. The same was marked as the defendant's exhibit ‘C,’ for identification only."²

The plaintiff's motion in limine to preclude the defendant's proposed exhibit, which was referenced by the court in its memorandum of decision, was filed on July 17, 2018. The plaintiff argued that the defendant's proposed exhibit K (later marked as exhibit C)³ was not an executed or enforceable prenuptial agreement, but rather appeared to be an attempt to "populate" a boilerplate prenuptial agreement document. She argued that proposed exhibit K—an unfinished, unsigned and undated document—should not be introduced into the trial as evidence because it was not relevant. At the preliminary hearing on the plaintiff's motion on July 19, 2018, the plaintiff's counsel argued that the defendant could not proceed on his claim for enforcement of a prenuptial agreement because no written, signed agreement existed. In an attempt to provide the defendant with "the fairest possible trial of all the issues," the court held an evidentiary hearing based on the defendant's claim that he could prove the existence and terms of the alleged missing premarital agreement with other collateral evidence.

At the conclusion of the evidentiary...