Kevin P. Mahaney v. Diana G. Mahaney (2011)

MEMORANDUM OF DECISION

The Plaintiff has filed a “Motion for Immediate Enforcement of Prenuptial Agreement and Related Relief” dated August 26, 2011 (# 253.00).   The Defendant opposes same.

STATEMENT OF FACTS AND PROCEDURAL BACKGROUND:

1. This dissolution of marriage action is in its pendente lite stage.   The parties have been married for approximately ten (10) years.

2. The Plaintiff Husband is seeking to enforce an alleged pre-marital agreement dated July 26, 2001.   The issue of the post-marriage amendment is not being pursued.   Defendant disputes the enforceability of the pre-marital agreement.   The defendant claims that the purported July 26, 2001 premarital agreement allegedly signed two days before the parties' wedding was not executed voluntarily by her and that its enforcement would be unconscionable given the present circumstances of the parties.   She also asserts that terms of the purported July 26, 2001 premarital agreement were unconscionable when the agreement was executed and that prior to the execution of the premarital agreement she was not provided fair and reasonable disclosure of the amount, character and value of property, financial obligations and then-current income of the Plaintiff.

After an evidentiary hearing on October 29, 2010, the Court, Wenzel, J., entered orders that Plaintiff pay Defendant alimony and counsel fees pendente lite.   The Plaintiff was ordered to pay to the Defendant:  (a) alimony of $12,500 per month, (b) expenses associated with the Greenwich residence where the Defendant resides, (c) other personal expenses of the Defendant and (d) counsel fees of $40,000.

On June 27, 2011 the Court after hearing ordered Plaintiff to pay Defendant $260,000 in attorneys fees and $150,000 in costs, payment to be made in 30 days, i.e. by July 27, 2011.   These fees have not been paid.   Plaintiff appealed the Court's pendente lite order (# 244.00) as to fees and costs on July 15, 2011.   On July 18, 2011, Defendant filed a Motion for Counsel Fees to Defend Appeal, Pendente Lite (# 245.00).

Plaintiff has filed two motions as to bifurcation:  Plaintiff's Motion to Bifurcate, Pendente Lite dated September 10, 2011 (# 127.00) and Plaintiff's Renewed Motion to Bifurcate, Pendente Lite dated May 5, 2011.   An order was issued as to the first motion (“Memorandum of Decision Re:  Plaintiff's Motion to Bifurcate (# 127) and Plaintiff's Motion to Appoint discovery Special Master # 144” dated December 8, 2011), which essentially denied bifurcation without prejudice subject to Plaintiff's ability to renew same in the event certain criteria were met.   These criteria have not been met.

As to the Plaintiff's Renewed Motion to Bifurcate, Pendente Lite dated May 5, 2011, at a hearing on June 27, 2011, the plaintiff was not available for a hearing on the issue said motion has not been pursued.

After the Court proceedings of June 27, 2011 Plaintiff's attorney was replaced.   Successor counsel thereupon raised the claim that the Plaintiff is now entitled to a “pre-deprivation hearing” rather than bifurcation of the issues.   Plaintiff for the first time claims such hearing as a matter of constitutional right.

On August 26, 2011 Plaintiff filed his Motion for Immediate Enforcement of Prenuptial Agreement and Related Relief (# 253.00).   Plaintiff makes the claim that he does not intend the financial awards entered to date in favor of the defendant prior to any hearing on enforceability of the Agreement, deprives the Plaintiff of his rights to due process of law.   See e.g. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569–70 (1972);  State v. Fernando A., 29 Conn. 1, 24–34 (2009).

The Plaintiff claims he is entitled in this divorce action involving premarital agreements to a pre-deprivation hearing.   Such a hearing would pre-empt provisions of C.G.S. § 46b–36a et seq., the Connecticut Premarital Agreement Act. The “pre-deprivation hearing” could force the Defendant to litigate the enforceability of the purported premarital agreement without the benefit of adequate discovery or experts.

The language in paragraph 9 of Plaintiff's pleading indicates that the Plaintiff is attempting to re-litigate an issue already decided by this Court, Wenzel, J. This claim also constitutes the basis of the Plaintiff's appeal from the pendente lite award of counsel fees and costs to the Defendant.   This challenge occurs notwithstanding the Plaintiff's failure to raise constitutional claims or take an appeal within the time limits permitted for a challenge to the totality of the Court's proceedings in this case.

For the reasons which follow the Plaintiff's Motion for Immediate Enforcement of Prenuptial Agreement and Related Relief dated August 26, 2011 (# 253.00) is denied and Defendant's objection thereto is sustained.

The essence of the Plaintiff's constitutional claim is that in an action for dissolution of marriage involving a prenuptial agreement, the proponent of the agreement is entitled to a hearing as to the enforceability of the alleged contract before any other proceedings in the case occur.   The issue as framed by the Plaintiff could bar the Defendant from discovery or the use of experts, will preclude her from having the means to retain competent counsel, will short-cut judicial inquiry and will ultimately resolve all issues in Plaintiff's favor.   Under Plaintiff's theory, nothing would occur in the case until the court holds a “pre-deprivation” hearing.

The entirety of the Plaintiff's constitutional claim as set forth in his Motion for Immediate Enforcement of Prenuptial Agreement and Related Relief is set forth in paragraph 12 thereof and states the following:

Mr. Mahaney is also being denied his constitutional right each day that passes while he is required to pay Mrs. Mahaney money without a hearing on the enforceability of the Agreement.   As explained previously, (a) Mr. Mahaney has a contractual right establishing that he is not obligated to pay alimony (temporary or otherwise), attorneys fees or expert fees to his wife in connection with a divorce action, and (b) Mr. Mahaney's contractual rights in this regard are authorized and approved under Connecticut statutory law unless defendant proves that the contract is not enforceable.   Under these circumstances, the financial awards in favor of Mrs. Mahaney, prior to any hearing on enforceability of the Agreement, deprives Mr. Mahaney of his rights to due process of law.   See e.g. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569–70 (1972);  State v. Fernando A., 29 Conn. 1, 24–34 (2009).   This Court's failure to refusal to hold a pre-deprivation hearing violates not only plaintiff's due process rights, but also the open courts provision of the Connecticut Constitution, as well as the rules governing the administration of justice in Connecticut courts.   See Conn. Const.  Art. I, Sec. 10;  Ramin v. Ramin, 281 Conn. 324, 337–39 (2007);  Ahneman v. Ahneman, 243 Conn. 471, 478–80 (1998).  (Emphasis in original.)

The Plaintiff fails to submit a writing which clearly or expressly sets forth the required constitutional analysis of his claim attacking the Court's ability to make or continue pendente lite orders without first holding a pre-deprivation hearing.   This Court is left to only surmise the gravamen of the Plaintiff's constitutional challenge.

As stated in State v. Fauntleroy, 101 Conn.App. 144, 921 A.2d 622, 632–33 (2007), in order to prevail in a claim of a violation of due process of law, a party must prove (1) that he has been deprived of a property or liberty interest cognizable under the due process clause and (2) that the deprivation of the property or liberty interest occurred without due process of law.   See also Barton v. City of Bristol, 294 F.Sup.2d 184, 196–97 (D.Conn., 203);  Tele Tech of Connecticut Corp. v. DPUC, 270 Conn. 778 (2004);  Santana v. City of Hartford, 94 Conn.App. 445, cert. granted in part 279 Conn. 901, aff'd 282 Conn. 19 (2006);  D'Amico v. Johnson, 53 Conn.App. 855, 862–63 (1999);  and West Farms Associates v. State Traffic Commission, 951 F.2d 469, 472–74 cert. denied, 503 U.S. 985 (CA2, Conn., 1991) (Plaintiff may not successfully claim a deprivation of property without due process absent identification of a protected property interest).

Plaintiff's claim lacks necessary allegations and specificity, and Plaintiff has failed to support it with accurate factual allegations.   See Maloney v. PCRE, LLC, 68 Conn.App. 727 (2002) (even under the more liberal rules, a pleading must provide sufficient notice of the facts claimed and the issues to be tried so that they do not work surprise or prejudice upon the opposing party);  Santiago v. Commissioner of Corrections, 39 Conn.App. 674 (1995) (the essential allegations in a pleading may not be supplied by conjecture or remote implication).

If successful, what the Plaintiff will accomplish by his demand for a “pre-deprivation hearing” is nothing less than the denial of due process of law to the Defendant.   The determinations to be made by the Court under C.G.S. §§ 46b–36a through 46b–36j, the Connecticut Premarital Agreement Act, are fact based.   Obviously it is apparent that material facts which affect the rights of the parties are in dispute.

In making a final determination as to whether the purported premarital agreement and the amendment thereto are enforceable, this Court shall be exercising its discretion as a trier of facts.   When the exercise of the court's discretion depends on issues of fact in dispute, due process requires there be a trial or trial-like hearing in which there is a meaningful opportunity to present evidence and to cross-examine adverse witnesses.   See In re Tayler F., 296 Conn. 524 (2010);  Morgera v. Chiappardi, 74 Conn.App. 442, 454–57, on remand 2003 WL 22705753, affirmed 87 Conn.App. 903 (2003);  Gil v. Gil, 94 Conn.App. 306 (2006);  Eilers v. Eilers, 89 Conn.App. 210 (2005);  Berglass v. Berglass, 71 Conn.App. 771, 782–84 (2002);  Esposito v. Esposito, 71 Conn.App. 744, 747 (2002);  Woodward v. Woodward, 44 Conn.App. 99, 103–04 (1997);  Szot v. Szot, 41 Conn.App. 238, 242 (1996);  Morgera v. Chiappardi, 74 Conn.App. 442, 454–57, on remand 2003 WL 22705753, affirmed 87 Conn.App. 903 (2003).

The Plaintiff seeks to obviate these constitutional protections by asserting that because there is an alleged premarital agreement at issue he is entitled to a “pre-deprivation hearing.”   Such a hearing would take place, according to the Plaintiff, before discovery is completed and would necessarily determine the validity of the premarital agreement before a trial on the disputed issues as to the agreement's actual enforceability.   The Defendant would be denied a meaningful opportunity to contest disputed issues of fact with respect to the validity of the premarital agreement.

The Plaintiff asserts that he is entitled to a judicial determination that the alleged premarital agreement is enforceable without a trial and despite the objections and claims of the Defendant.   This is contrary to the law in this state.   See Schick v. Windsor Airmotive Division/Barnes Group, Inc., 34 Conn.App. 673, 676–78 (1994) (a party litigant is generally entitled to a decision on the facts by the judge who heard the matter, and a deprivation of that right may be a denial of due process);  Wojculewicz v. Cummings, 145 Conn. 624, 632–33, cert. denied 356 U.S. 969 (1958) (a fair trial is implicit in the term “due process of law”);  and Friezo v. Friezo, 281 Conn. 166 (2007), on subsequent appeal 2008 WL 2552970 (2007) (court's examination of whether proper disclosure has been made by a party to a prenuptial agreement of the amount, character and value of individually owned property must focus on the actions of the disclosing party, and the nature, extent and accuracy of the information disclosed);  Montoya v. Montoya, 91 Conn.App. 407, cert.   Granted in part 276 Conn. 916, affirmed in part, reversed in part, 280 Conn. 605 (2005) (it is the court's role to weigh all of the evidence, including the parties' prenuptial agreement itself and the testimony regarding the parties' intent, and the court is free to assess the credibility of witnesses and to reject proposed constructions that it determines are not consistent with the language of the ambiguous prenuptial agreement).   See also C.G.S. § 46b–36g, “Enforcement of Premarital Agreement.”

C.G.S. § 46b–36a et seq., the “Connecticut Premarital Agreement Act” governs the enforcement of premarital agreements executed under the laws of the state of Connecticut.   These statutes do not mandate or even mention a “pre-deprivation” hearing.   However, these statutes expressly recognize that a party may oppose enforcement of a prenuptial agreement.   See C.G.S. § 46b–36g.   The Court has an independent obligation under certain sections of the Connecticut Premarital Agreement Act to determine if the purported agreement is within the parameters of the law or should be modified or held unenforceable.   See e.g. C.G.S. § 46b–36g(4)(b).

The Plaintiff fails to indicate in his objection whether the assertion of a right to a “pre-deprivation hearing” is an attack on the Connecticut Premarital Agreement Act or a separate assertion as to the unconstitutionality of the procedures under which the Courts of this state consider issues related to enforcement of alleged prenuptial agreements in actions for dissolution of marriage.   The Plaintiff fails to assert any infringement of an express or unequivocal right as to a specific procedure so as to enable the Court to determine the constitutional validity of the proceedings in the instant case.

The Plaintiff's claim of an alleged violation of due process of law constitutes a facial attack on the constitutionality of the premarital agreement statute.   Such challenges are impermissible.  Inturri v. City of Hartford, Conn., 365 F.Sup.2d 240, 253, affirmed, 165 Fed.Appx. 66 (D.Conn., 2005);  Roxque v. Farricielli, 269 Conn. 187, 204–05 (2004);  Dumont v. Commissioner of Motor Vehicles, 48 Conn.App. 635, 642, cert. denied, 245 Conn. 917 (1998).   As the Connecticut Supreme Court stated in Hong Pham v. Starkowski, 300 Conn. 412, 429:

A facial challenge to the constitutionality of a statute presents questions of law over which our review is plenary.   See, e.g., Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 155, 957 A.2d 407 (2008).   To establish a claim of facial invalidity, the party challenging the statute must demonstrate “that the law is invalid in toto—and therefore incapable of any valid application.”  (Internal quotation marks omitted.)  State v. McKenzie–Adams, 281 Conn. 486, 499, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S.Ct. 248, 169 L.Ed.2d 148 (2007).  “[A] validly enacted statute carries with it a strong presumption of constitutionality, [and] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt ․ The court will indulge in every presumption in favor of the statute's constitutionality ․ Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain legislation unless its invalidity is clear.”  Id., at 400, 915 A.2d 822.

The Plaintiff fails to sustain a claim that the Connecticut Premarital Agreement Act is unconstitutional.

The burden of proof imposed upon the Plaintiff with respect to his apparent claim as to the unconstitutionality of C.G.S. § 46b–36a is that of “beyond a reasonable doubt.”   See Campion v. Board of Alderman of the City of New Haven, 278 Conn. 500, 899 A.2d 542, 558 (2006).   The Court in this case has previously found facts sufficient to award temporary alimony, make an order of limited exclusive possession and render two orders that the Defendant receive counsel fees and costs.   In addition this Court has recognized the Plaintiff's recalcitrance in depositions and discovery and has made orders in that regard.   The Court has conducted numerous hearings with respect to these subjects, all without constitutional challenge by the Plaintiff.   Plaintiff failed to raise this “constitutional” claim when this matter was addressed by the Court in the context of Plaintiff's claim for “bifurcation,” when the court considered the Plaintiff's motion for exclusive possession, when the Defendant sought temporary alimony or when the Defendant sought attorneys fees pendente lite.   See Zimny v. Cooper–Jarrett, Inc., 8 Conn.App 407 (1986);  DiMartino v. Richens, 263 Conn. 639 (2003).

The factual framework in which the Court must consider the issue of the constitutionality of the statutory scheme for Pre–Marital Rights Agreements is limited to a determination as to whether or not the constitutional ground alleged by the Plaintiff is appropriate and sufficient under the statute (i.e., C.G.S. §§ 46b–36a–46b–36j) to constitute a particularized and mandated procedure for a “pre-deprivation hearing” contrary to the procedures he previously sought to employ in the case.   In Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 372 (2008), cert. denied, 128 S.Ct. 248 (2007) the Connecticut Supreme Court stated:

“The Court will indulge in every presumption in favor of the statute's constitutionality ․ Therefore, [w]hen a question of constitutionality is raised, court must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.”  Dutkiewicz, Supra., pg. 373 citing State v. McKenzie–Adams, 281 Conn. 486, 500.

“A validity enacted statute carries with it a strong presumption of constitutionality, [and] those who challenge its constitutionality must sustain a heavy burden of proving unconstitutionality beyond a reasonable doubt ․” Hong Pham v. Starkowski, 300 Conn. 412, 429 (2011).

If the Defendant claims that he is being denied a constitutional right to due process of law under either the state or federal Constitutions, it is incumbent upon him to allege and prove that the alleged conduct of which he complains constitutes “state action.”   MedVal USA Health Programs, Inc. v. Memberworks, Inc., 273 Conn. 634, 872 A.2d 423, 429, cert. denied sub nom.;   Vertrue, Inc., v. Medvalusa Health Programs, Inc., 126 S.Ct. 479 (2005).

In the instant matter a private litigant employing pleadings and procedures sanctioned by the Connecticut Practice Book and this state's general statutes has sought to have this Court, after trial, determine that an alleged premarital agreement is unenforceable.   See C.G.S. § 46b–36g(a).   The State of Connecticut is not a party to this private civil lawsuit.   The fact that the Plaintiff and the Defendant are seeking a dissolution of marriage and a determination of their rights under Connecticut statutes does not convert either party into an agent of the State, nor does it make the Court an actor on behalf of either party.   The fact that the Defendant maintains that an alleged prenuptial agreement is unenforceable does not make her an agent of the State, nor does it make the Court an actor on Defendant's behalf, regardless of its rulings.

Nor does the fact that the Defendant is employing procedures which require the participation of the Court to facilitate due process render the actions of this Court “state action” for constitutional due process reasons.   See Price v. International Union of United Auto, Aerospace, and Agr. Implement Workers of America, 621 F.Sup. 1243, 1249–50 aff'd, 795 F.2d 1128, cert. granted, vacated 487 U.S. 1229, on remand 722 F.Sup. 933, aff'd, 927 F.1d 88, cert. denied, 502 U.S. 905 (1985);  Hadelman v. Deluca, 274 Conn. 442 (2005), (an arbitration award is not converted into state action by a party seeking enforcement of the award in the Courts);  MedVal USA Health Programs, Inc. v. Memberworks, Inc., 273 Conn. 634, cert. denied, Vertrue, Inc. v. Medvalusa Health Programs, Inc., 126 S.Ct. 479 (2005) (act of the Superior Court in confirming award did not constitute state action).

The Defendant is seeking a judicial determination of her claim under § 46b–36g, and this Court has to date made rulings with respect to this case generally and her claims specifically.   Neither the actions by the Defendant nor those by the Court implicate “state” involvement for due process purposes.   Moreover, the enforceability of the alleged premarital agreement and the Defendant's challenge thereto will be based upon the independent judgment of the Superior Court after trial.

The Defendant's claims in the instant civil lawsuit do not implicate state action upon which a constitutional violation of due process of law will lie.   Absent such state action the Plaintiff's claim of a denial of due process fails to reach a constitutional threshold.  MedVal USA Health Programs, Inc. v. Memberworks, Inc., supra.

Connecticut is one of twenty-five states which has adopted some version of the Uniform Premarital Agreement Act. C.G.S. §§ 46b–36a–46b–36j.   The others are Arizona, A.R.S. §§ 25–201 to 25–205;  Arkansas A.C.A. §§ 9–11–401 to 9–11–413, California, West's Ann. Cal. Farm.Code §§ 1600 to 1617;  Delaware, 13 Del.C. §§ 321 to 328;  Hawaii, HRS §§ 572D–11;  Idaho, I.C. §§ 32–921 to 32–929;  Illinois, S.H.A. 750 ILCS 10/1 to 10/11;  Indiana, West's A.I.C. 31–11–3–1;  Iowa, I.C.A. §§ 596.1 to 596.12;  Kansas, K.S.A. 23–801 to 23–811;  Maine, 19–A.M.R.S.A. §§ 601 to 611;  Montana, MCA 40–2–601 to 40–2–610;  Nebraska, R.R.S.1943, §§ 42–1001 to 42–1011;  Nevada, NRS 123A.010 to 123A.100;  New Mexico, NMSA 1978, §§ 40–3A–1 to 40–3A–10;  New Jersey, N.J.S.A. 37–2–31 to 37–2–41;  North Carolina, G.S. §§ 52B–1 to 52B–11;  North Dakota, NDCC 14–03.1–01 to 14–03.1–09;  Oregon, ORS 108.700 to 108.740;  Rhode Island, Gen.Laws 1956, §§ 15–17–11;  South Dakota, SDCL 25–2–16 to 25–2–25;  Texas, V.T.C.A., Family Code §§ 4.001 to 4.010;  Utah, U.C.A.1953, 30–8–1 to 30–8–9;  and Virginia, Code 1950;  §§ 20–147 to 20–155.¹

Neither the statutory schemes in force in these states nor the Uniform Premarital Agreement Act itself provides for a “pre-deprivation” hearing.   Moreover, a diligent search of the law in all fifty states indicates that none of them requires a pre-deprivation hearing in the context of the enforcement of a prenuptial agreement.

The Plaintiff in his Motion for Immediate Enforcement of Prenuptial Agreement and Related Relief states:

Under these circumstances, the financial awards in favor of Mrs. Mahaney, prior to any hearing on enforceability of the Agreement, deprives Mr. Mahaney of his rights to due process of law.

In support of this assertion (which ignores the procedural and substantive history of this case) the plaintiff cites Bd. Of Regents of State Colleges v. Roth, 408 U.S. 564, 569–70 (1972), and State v. Fernando A., 294 Conn 1, (2009).   Neither opinion supports the conclusory and inaccurate contention of a constitutional due process violation belatedly espoused by the Plaintiff.

In Bd of Regents of State Colleges v. Roth, 408 U.S. 564 (1972) the United States Supreme Court found no denial of due process of law when a state college elected not to rehire the non-tenured plaintiff instructor after his contract had expired.   The Court found that there was no obligation to provide the instructor with notice of the reasons for his not having been rehired and no obligation to afford him an opportunity to be heard regarding this determination.   See Bd. of Regents of State Colleges v. Roth, 578.   The Supreme Court noted that in considering whether there has been a procedural violation of due process of law, the alleged “rights infringed upon must be clearly identified and examined to determine whether they are deserving of due process protection.”

Under Bd. of Regents v. Roth the assertion and litigation of a claimed violation of procedural due process of law requires proper analysis.   See, 408 U.S. 564, 576–78 (1972).   The Plaintiff's claim in the present case fails to engage in any constitutional analysis of a procedural due process violation.   Subsequent to Bd. of Regents v. Roth, the United States Supreme Court decided Mathews, Secretary of Health, Education & Welfare v. Eldridge, 424 U.S. 319 (1976), where the Court noted that its prior decisions indicate a requirement that the issue be analyzed in light of three distinct factors.   Id., at 334–35.   This is an analysis which the Plaintiff fails to employ.

The Plaintiff's reference to State v. Fernando A., 294 Conn. 1 (2009) does not support his claim of a due process violation.   In State v. Fernando A., 294 Conn. 1 (2009) the issue addressed was whether the Court could issue a criminal protective order barring a defendant accused of a domestic rime from his home and children without due process hearing.   The Connecticut Supreme Court held that an evidentiary “pre-deprivation hearing” was not required.   Thus the Court denied the Defendant the right to an evidentiary hearing before he was deprived of the right to live in his home or have access to his children.   Rather State v. Fernando A., mandated only that if the Defendant requested an evidentiary hearing at the initial (non-evidentiary) hearing at which the criminal protective order is issued, the hearing will take place within a reasonable time thereafter.   At such hearing the State is entitled to employ hearsay evidence and prove its claim only by a fair preponderance of the evidence.

When a statute does not contain a specific procedure or methodology for carrying out its provisions the Court must look to establish procedures and provisions of the statutes and rules of practice.   See Tocco v. Wesleyan University, 112 Conn.App. 28, 31, (2009) holding that where a statute, in that case C.G.S. § 52–102b(d), does not contain a reference as to the manner of service upon the non-appearing party of amended claims for relief, reference was to be made to the rules of practice.   In State v. Strickland, 243 Conn. 339, 347–54 (1997) the Court in determining whether the right of allocution existed for probation termination proceedings under the rules of practice looked to the interplay between Connecticut Practice Book provisions and various state statutes in making its determination that such a right existed.   The court stated at pp. 347–48 that:

Initially, we note that our Practice Book provisions are interpreted in accordance with the same principles that guide interpretation of our general Statutes.   Therefore, our rules of practice should be construed harmoniously and not in a way that would render one provision superfluous as a result of the existence of another.   Citations omitted.

In the instant matter the procedure to be employed in a dissolution of marriage action involving an alleged premarital agreement is well defined.   See McHugh v. McHugh, 181 Conn. 482 (1980);  Friezo v. Friezo, 281 Conn. 166 (2007);  Fitzgerald v. Fitzgerald, 169 Conn. 147 (1975);  Scharer v. Scharer, 2001 WL 984728.   These procedures do not involve a “pre-deprivation hearing.”

The Connecticut Premarital Agreements Act, in particular C.G.S. § 46b–36e, says that a prenuptial agreement entered into between parties becomes “effective upon marriage.”   This statute is based on section 4 of the Uniform Premarital Agreement Act, 1983.   Indeed the Uniform Premarital Agreement Act is the genesis of C.G.S. § 46b–36a et seq. and was adopted with certain modifications by Connecticut in 1995.

The Plaintiff equates the fact that an agreement is “effective” upon marriage with the fact that it is “enforceable.”   The comment to the analogous section of the Uniform Premarital Agreement Act states the purpose of the section in question to be as follows:

This section establishes a marriage as a prerequisite for the effectiveness of a premarital agreement.   As a consequence, the act does not provide for a situation where persons live together without marrying.   In that situation, the parties must look to the other law of the jurisdiction (see Marvin v. Marvin, 18 Cal.3d 660 (1976);  judgment after trial modified, 122 Cal.App.3d (1981)).

Uniform Premarital Agreement Act, § 4, Comment.   The testimony of Attorney Edith McClure prior to the bill's passage by the Connecticut legislature buttresses the comment in the Uniform Act. Attorney McClure stated, “A pre-marital agreement would be voided if the marriage did not occur.”   Joint Standing Committee Hearings, Judiciary, March 17, 1995.

Thus the purpose of C.G.S. § 46b–36e is to state that prior to marriage an antenuptial agreement is not effective, not to imply automatic enforceability of the agreement after marriage as the Plaintiff suggests.   This section is meant to address the situation before the parties' marriage, not after it.   For example, if a couple signs a prenuptial agreement on July and does not marry until August 1, the agreement is ineffective between July 1 and August 1. Similarly, if they never get married, the agreement is treated as if it were never executed.   For the Defendant to use § 46b–36e to support the proposition that an antenuptial agreement becomes automatically enforceable after parties marry is disingenuous.

In Marino v. Marino, 136 Conn. 617 (1950) the plaintiff wife brought an action for support against her husband.   The trial court entered an order for support pendente lite.   The defendant appealed claiming that the trial court denied him the right to offer evidence that the plaintiff had abandoned him and therefore was not entitled to support.   The Connecticut Supreme Court affirmed the trial court, ruling that it was in the latter's discretion to defer the issue of abandonment to the final trial on the merits.  Marino v. Marino, supra, 136 Conn. 620.  “Upon a motion for such temporary support, the question is not whether, on the merits of the entire case, the wife is entitled to support ․ The function of such an order is to enable the wife to live pending the determination of the principal question in the case.”  Id., 619.

Similarly, in Fitzgerald v. Fitzgerald, 169 Conn. 147 (1975), the Connecticut Supreme Court upheld the decision of the trial court in a dissolution action to consider the validity of a separation agreement entered into by the parties when deciding motions for temporary alimony and child support.   The Supreme Court held that the trial court properly deferred the issue of the validity of the separation agreement to the time of the trial on the merits, finding that an inquiry into the validity of the agreement was “unnecessary and improper” for a determination of the motions for temporary orders.  Fitzgerald v. Fitzgerald, supra, 169 Conn. 153.

A number of Superior Court decisions have followed the Fitzgerald holding, See Scharer v. Scharer, 30 Conn. L. Rptr. 127, 2001 WL 984728 (2001) (where the court refuses to consider a premarital agreement in a hearing involving temporary alimony);  Dornemann v. Dornemann, Superior Court, 37 Conn. L. Rptr. 771, 2004 WL 20947746 (2004) (stating that “[a]lthough 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’ ”);  Stancuna v. Stancuna, 2007 WL 2570428 (2007);  Leiser v. Leiser, 2005 WL 1394741 [39 Conn. L. Rptr. 345] (2005) ( “the court emphasizes that it is not passing upon the validity of the prenuptial agreement but leaves that issue to be decided at a later date, either at a hearing devoted to that issue or at the final hearing on the merits of the case”);  Levin v. Levin, 1994 WL 68526 (1994) (“Of necessity, a determination of the merits or validity of any prenuptial agreement cannot be known until a full, complete and fair hearing of the matter is had on its merits.   Considerations of public policy involved in trying to maintain the status quo awaiting an orderly determination of the terms of the agreement ․”).

The Plaintiff is seeking to determine the validity of a premarital agreement at the commencement of a dissolution of marriage action or in mid-stream.   There is no legal basis for the same.

ORDER

The Defendant's Objection to Plaintiff's Motion for Immediate Enforcement of Prenuptial Agreement and Related Relief dated August 26, 2011 (# 265.00) is sustained.

By the Court,

OWENS, J.T.R.

FOOTNOTES

FN1. The District of Columbia (D.C. Official Code, 2001 Ed. §§ 46–501 to 46–510) has also adopted the Uniform Act..  FN1. The District of Columbia (D.C. Official Code, 2001 Ed. §§ 46–501 to 46–510) has also adopted the Uniform Act.

Owens, Howard T., J.T.R.