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MARIANNA ANTONUCCI v. VINCENT ANTONUCCI

(AC 36842)

Sheldon, Keller and Schaller, Js.

Argued September 21, 2015—officially released March 29, 2016

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Shay, J.)

Thomas M. Cassone, for the appellant (plaintiff).

Kevin F. Collins, with whom, on the brief, was Ami

Jayne Wilson, for the appellee (defendant).
Opinion

KELLER, J. The plaintiff, Marianna Antonucci,

appeals from the trial court’s award of lump sum alimony to the defendant, Vincent Antonucci, in the context of its judgment dissolving the parties’ twenty-five

year marriage. The plaintiff claims that the court erred

by (1) failing to enforce an agreement between the

parties and the plaintiff’s mother, whereby the plaintiff’s

mother transferred her real property (property) to the

plaintiff and retained a life estate in it for herself, conditioned on the defendant waiving any claims to the property; (2) reopening the evidence sua sponte in order to

allow the parties the opportunity to offer additional

evidence regarding the valuation of the plaintiff’s

remainder interest in the property; (3) adopting the

valuation of the plaintiff’s remainder interest in the

property proposed by one of the defendant’s expert

witnesses, William F. Murray, who assertedly was not

qualified to appraise the value of remainder interests

in residential real estate and had not used a relevant

discount rate in calculating the value of the plaintiff’s

remainder interest in the property; and (4) failing to

consider adequately the parties’ current financial circumstances in awarding the defendant lump sum alimony, payable by the plaintiff in ten annual

nonmodifiable installments, each equaling more than

40 percent of her annual gross income, commencing

just three months from the date of the judgment of dissolution.

On the basis of our conclusion that the court erred

in its analysis with respect to the enforceability of the

agreement between the parties and the plaintiff’s

mother, and in determining the value of the plaintiff’s

remainder interest in the property, we reverse the judgment of the trial court, in part, with respect to its financial orders. We remand the case to the trial court for

further proceedings on the issue of whether the parties’

agreement with the plaintiff’s mother is enforceable

and for reconsideration of all financial orders.1

The plaintiff filed an action for dissolution of the

parties’ marriage on August 10, 2011. The trial initially

took place over a period of four days in August, 2013.

After both parties had rested, the trial court, sua sponte,

on November 1, 2013, ordered the evidence reopened,

indicating that, although it had accepted the methodology of the plaintiff’s expert for determining the value

of the plaintiff’s remainder interest in the property, it

believed that one of the variables in the expert’s formula, the discount rate utilized by the plaintiff’s expert

to determine the net present value of the remainder

interest, was inappropriate. The court then gave the

parties an opportunity to present additional evidence

on March 14, 2014, as to an appropriate discount rate.

The court rendered a judgment of dissolution on March

21, 2014.
In rendering its decision, the court found the following facts: ‘‘The plaintiff . . . whose birth name was

Marianna Sandolo, and the defendant . . . were married in Stamford, Connecticut, on April 10, 1988. They

are the parents of two adult children . . . . The parties

have been living separate and apart for approximately

two years. Neither party graduated from high school,

and both are currently employed. The [plaintiff] is a

co-owner with her mother of a family restaurant in

Stamford, and the [defendant] is a heavy equipment

operator for Lee Rizzuto . . . . Both have comparable

incomes of approximately $50,000 per annum, and both

have, apart from a couple of relatively brief periods of

unemployment by the [defendant], been steadily

employed throughout the marriage. Except for some

minor conditions, each enjoys generally good health.

Neither claims alimony from the other.

‘‘Throughout the marriage, the couple benefited from

substantial gifts from their respective families, by far

the greater coming from the [plaintiff’s] parents.

Remarkably, they have managed to save nothing—no

safety net; no retirement accounts. While the [plaintiff]

generally paid the bills, both are relatively unsophisticated when it comes to finances. Neither was able to

live within their means, enabled no doubt by the generosity of the [plaintiff’s] parents. They bought, improved,

and sold some real properties, yet their investments

had marginal returns at best. For the first ten years of

marriage, and later, at the end, they lived in her parents’

home. Priorto moving back with the [plaintiff’s] mother,

the couple [was] residing at 501 Roxbury Road, Stamford. They sold this property in June, 2007. . . . They

own several automobiles between them, as well as a

modest time-share in Florida.

‘‘The principal bone of contention is the [plaintiff’s]

interest in the real property at 85 Doolittle Road in

Stamford, formerly the residence of the [plaintiff’s] parents. On November 9, 2005, following the death of the

[plaintiff’s] father, her mother, Filomena Sandolo, transferred her interest in the real property to her daughter

by way of a quitclaim deed . . . while at the same time

retaining a life estate in the property. The conveyance

of the real estate was made pursuant to a certain

Agreement . . . also dated November 9, 2005, signed

by both parties and Filomena Sandolo, which contained

the further proviso that the [defendant] waive any

claims thereto, particularly in the event of a divorce.

. . .

‘‘After the death of her husband . . . Sandolo

wanted to remain in her own home; however, she did

not wish to live there alone. Accordingly, she asked the

[defendant] and [plaintiff] if they would like to live with

her again. She indicated that she would make some

substantial improvements to the home if they would

do so. . . . [B]oth parties agreed. [Sandolo] called her
family attorney, Joseph Pankowski, to draft certain documents and to bring them to her home. He did so on

November 9, 2005.

‘‘Each party called upon an expert to value the real

estate at 85 Doolittle Road, Stamford, and the [plaintiff’s]remainderinteresttherein. The [plaintiff’s] expert,

Armand V. Liguori, testified that the value of the real

property and improvements as of May 14, 2013 was

$1,280,000, which opinion was supported by a written

appraisal . . . . For his part, the [defendant’s] expert,

James J. Tooher, testified that as of that date, the value

of the property was $1,325,000, which was also supported by a written appraisal . . . . While the court

found both witnesses credible on this point, it finds

that the more reliable number is the lower number.

However, in arriving at the value of the [plaintiff’s]

remainder interest, the experts varied in a range from

$513,000 ([plaintiff’s] expert) to $634,000 ([defendant’s]

expert). While the court finds . . . the methodology

employed by [Liguori] to be more reliable . . . it finds

that he relied upon an article published in 1998 and

applied a 10 percent discount [rate], which the court

finds is not reflective of the current circumstances.

‘‘The court heard the matter over the course of five

days, including final argument, and the evidence closed

on August 28, 2013. However, upon further consideration, citing the case of Mensah v. Mensah2

[145 Conn.

App. 644, 75 A.3d 92 (2013)] . . . the court reopened

the evidence on November 1, 2013, in order to allow

the parties the opportunity to offer additional evidence

regarding the discountrate to be applied in the valuation

of the [plaintiff’s] remainder interest. . . .

3 A further

hearing was held on March 14, 2014, where the court

heard the testimony of the [defendant’s] expert, William

Murray, as well as briefly the [plaintiff’s business attorney, Jonathan Hoffman,] and her real estate appraiser

. . . Liguori. Mr. Murray testified at length and submitted a written report . . . . The witness testified categorically that a 10 percent discount rate was not

realistic. Basing his opinion upon a life expectancy of

11.1 years, an average rental in Stamford for a comparable property, and a combination of historical [Real

Estate Investment Trust] performance return data and

the applicable federal rate, he testified that the appropriate discount rate should be 3.37 percent. Applying

that to the market value of the property, results in a

value of the remainder [interest] of $1,103,806.’’ (Citations omitted; emphasis in original; footnotes added.)

Before it issued its final orders, the court addressed

certain questions of law. First, it determined that the

plaintiff’s remainder interest in the property was part

of the marital estate as it was ‘‘acquired while the parties

were husband and wife’’ and ‘‘[was] the sole significant

asset in either party’s name at the termination of a

twenty-five year marriage.’’4 The court noted that, ‘‘[i]n
family cases . . . it is the function of the court to divide

the marital estate, irrespective of who holds title.’’ The

court cited General Statutes § 46b-81 (a), which states

in relevant part that ‘‘[a]t the time of entering a decree

annulling or dissolving a marriage orforlegal separation

. . . the Superior Court may assign to either spouse all

or any part of the estate of the other . . . .’’ Further,

the court concluded that the plaintiff ‘‘has a vested

interest in the real property at 85 Doolittle Road . . .

[and] this interest is capable of valuation at this time.’’

Next, the court discussed the enforceability of the

agreement dated November 9, 2005, between the parties

and Sandolo. Although it expressed concerns as to the

agreement’s legal viability, the court determined that it

did not need to abrogate the agreement, deciding

instead to use ‘‘alternate means to achieve an equitable

resolution of this family dispute.’’ The court concluded

that, regardless of the terms of the agreement, ‘‘[s]aying

that [the plaintiff’s remainder interest is not part of the

marital estate] does not make it so.’’

In issuing its final orders, however, the court found

that ‘‘the portion of the agreement entered into on

November 9, 2005 . . . in particular paragraph 3

thereof, relating to the [defendant’s] waiver of marital

and other legal rights is void as against public policy

and is unenforceable against the [defendant], and is,

moreover, not binding upon a court in exercising its

statutory duty to subsequently dissolve the parties’ marriage, award alimony, and provide for an equitable distribution of assets and other relief; and that as to the

remainder ofthe agreement, there was sufficient mutual

consideration to enforce same as between . . . Sandolo and [the plaintiff].’’

The court determined that its equitable powers gave

it authority to consider all the circumstances that may

be appropriate for a just and equitable resolution of the

marital dispute and that, although neither party sought

periodic alimony, an award of lump sum alimony to the

defendant was appropriate under all the circumstances.5

In making this finding, the court took into

account the statutory factors in § 46b-81, and further

found that the plaintiff’s vested interest in the property

‘‘will inure to the benefit of her long-term financial

security . . . and that [an] award of lump sum alimony

[to the defendant would] give [him a] present opportunity to provide for his long-term financial security.’’ The

court gave weight to the length of the marriage, the

source of the [plaintiff’s] principal asset, her remainder

interest in the property, the limited education of both

parties, their occupations and vocational skills, their

present assets and the likelihood that neither of them

would acquire significant assets in the future, and the

fact that neither party made any other provision for

retirement. The court also found that ‘‘throughout the

marriage, until their separation, both parties . . .
made significant contributions to the acquisition, maintenance, and preservation of the family assets, including

. . . improvements to . . . 85 Doolittle Road . . . .’’

The court permitted the plaintiff to retain her interest

in the property, subject to the existing indebtedness

and the life estate of Sandolo. It ordered the plaintiff

to pay the defendant, ‘‘as and for lump sum alimony,

the sum of $225,000, payable as follows: On or before

July 1, 2014, the [plaintiff] shall pay to the [defendant]

the sum [of] $22,500, and a like sum annually on each

subsequent anniversary of the first payment, until paid

in full. The foregoing notwithstanding, nothing shall

prevent the payment in full or in part at any earlier

time, and in the event of the death of . . . Sandolo,

the sale, refinance, or other transfer of the property,

or any interest therein, whichever shall sooner occur,

the then outstanding balance shall be due and payable

in full.’’ The court also stated, ‘‘It is the intention of

this court that this obligation shall be nonmodifiable,

survive the death of either party and the remarriage

or cohabitation of the [defendant], and that it be nontaxable to [defendant] and nondeductible by the [plaintiff].’’6

(Emphasis in original.)

The plaintiff filed a motion to reargue on April 9,

2014, which was denied by the court on May 1, 2014.7

On June 20, 2014, the court filed a correction to its

decision, clarifying that it was the intention of the court

that the lump sum alimony obligation be nonmodifiable,

that it survive both the death of either party and the

remarriage or cohabitation of the defendant, and that

it be nontaxable to the defendant and nondeductible

by the plaintiff. The plaintiff then filed the present

appeal, and also filed a motion to articulate the court’s

decision as to four issues. The court addressed each

request for articulation in turn. It first found that during

their occupancy of the property, the defendant and the

plaintiff ‘‘made actual, tangible contributions to the

property, including full or partial payment of the mortgage for at least two years, installation of bathroom tile

and fixtures, installation of garage doors, construction

of a cinder block retaining wall . . . use of a machine

to break up stone in [the] backyard, and raising of the

level of the same.’’

The court further articulated that it did not intend

that its decision abrogate the agreement of November

9, 2005, because rather than awarding the defendant a

share of the property, which would likely trigger further

acrimonious litigation, it awarded the entire interest in

the property to the plaintiff.8 That being the case, when

it came time to consider an award of alimony, the court

took into account the statutory factors set forth in General Statutes § 46b-82, including the award, if any, the

court may make pursuant to § 46b-81.9 Additional facts

and procedural history will be set forth as necessary.

We begin our analysis by setting forth the relevant
standard of review and legal principles. ‘‘An appellate

court will not disturb a trial court’s orders in domestic

relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude

as it did, based on the facts presented. . . . In

determining whether a trial court has abused its broad

discretion in domestic relations matters, we allow every

reasonable presumption in favor of the correctness of

its action. . . . Thus, unless the trial court applied the

wrong standard of law, its decision is accorded great

deference because the trial court is in an advantageous

position to assess the personal factors so significant in

domestic relations cases.

‘‘Appellate review of a trial court’s findings of fact is

governed by the clearly erroneous standard of review.

. . . 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.

. . . Our deferential standard of review, however, does

not extend to the court’s interpretation of and application of the law to the facts. It is axiomatic that a matter

of law is entitled to plenary review on appeal.’’ (Internal

quotation marks omitted.) Fulton v. Fulton, 156 Conn.

App. 739, 745, 116 A.3d 311 (2015).

‘‘[T]rial courts are empowered to deal broadly with

property and its equitable division incident to dissolution proceedings.’’ (Internal quotation marks omitted.)

Jewett v. Jewett, 265 Conn. 669, 682, 830 A.2d 193 (2003).

‘‘[T]he court is required by § 46b-81 to consider the

estate of each of the parties. Implicit in this requirement

is the need to consider the economic value of the parties’ estates. . . . In assessing the value of the assets

that comprise the marital estate, the trial court functions as the trier of fact. . . . The trial court has the

right to accept so much of the testimony . . . as [it]

finds applicable . . . .’’ (Citation omitted; internal quotation marks omitted.) McRae v. McRae, 129 Conn. App.

171, 183–84, 20 A.3d 1255 (2011). ‘‘[It] arrives at [its]

own conclusions by weighing the opinions of the

appraisers, the claims of the parties, and [its] own general knowledge of the elements going to establish value,

and then employs the most appropriate method of

determining valuation.’’(Internal quotation marks omitted.) Turgeon v. Turgeon, 190 Conn. 269, 274, 460 A.2d

1260 (1983). In selecting and applying an appropriate

valuation method, the trial court has considerable discretion. Krafick v. Krafick, 234 Conn. 783, 799–800, 663

A.2d 365 (1995). Generally, an appellate court will not

overturn a trial court’s division of marital property

unless it ‘‘misapplies, overlooks, or gives a wrong or

improper effect to any test or consideration which it

was [its] duty to regard. . . . As with other questions

of fact, unless the determination by the trial court is

clearly erroneous, it must stand.’’ (Citation omitted;
internal quotation marks omitted.) Bornemann v.

Bornemann, 245 Conn. 508, 532, 752 A.2d 978 (1998).

I

We first address the plaintiff’s claim that the court

erred in failing to enforce an agreement between the

parties and the plaintiff’s mother, Sandolo, in which

Sandolo transferred her property to the plaintiff and

retained a life estate in it for herself, conditioned on

the defendant waiving any claims to the property.

The following additional facts are relevant to this

claim. On November 9, 2005, the parties and Sandolo

entered into an agreement to effectuate the transfer of

a remainder interest in the property from Sandolo to

the plaintiff. In this agreement, Sandolo is referred to

as the ‘‘[g]rantor,’’ and the plaintiff and the defendant

are referred to as the ‘‘[g]rantee’’ and ‘‘the [g]rantee’s

[h]usband,’’ respectively. Paragraph 1 of the agreement

states, ‘‘In consideration of, and reliance upon, the

[g]rantee’s Husband’s statement set forth in paragraph

3 hereof, the [g]rantor hereby agrees to gift and convey,

and the [g]rantee hereby agrees to accept,[the property]

. . . subject to the reservation by the [g]rantor of a life

estate in the [p]remises.’’

Paragraph 3 of the agreement constitutes the defendant’s claimed waiver. It reads: ‘‘In consideration of the

[g]rantor’s decision to gift and convey the [p]remises,

the [g]rantee’s [h]usband hereby relinquishes all right,

title and interest which he may have in and to the

[p]remises at the time of the conveyance or at any time

in the future. The [g]rantee’s [h]usband further declares

that the [p]remises shall at no time be considered property of he and his wife’s marriage, whether or not he

and his wife’s marriage is at any time dissolved, and

that, if the [g]rantee predeceases him, he hereby waives

his right to elect the statutory share provided in Connecticut General Statute[s] [§] 45a-436 to obtain an

interest in the [p]remises.’’ (Emphasis added.)

Paragraph 4 states, ‘‘The [g]rantee agrees to provide

nutritional, health and other care-giving services to the

[g]rantor during the [g]rantor and [g]rantee’s mutual

occupancy of the premises.’’ The agreement does not

require that Sandolo permit the plaintiff to reside in the

home during the tenure of her life estate, nor does it

require the plaintiff to reside in the home in exchange

for the gift of the remainder interest.

In addressing the issue of whether the agreement

was not enforceable on the ground that it violates public

policy, the court devoted considerable discussion to

why enforcement of the defendant’s waiver in the

agreement served ‘‘no good societal interest . . . .’’

The court opined that any attempt to limit the marital

estate by a third party while the marriage is intact

should be void, that if the agreement was intended to

be a postnuptial agreement, it might not survive the
special scrutiny to be applied to such agreements, and

that, with respect to the circumstances surrounding its

execution, the agreement failed ‘‘the test of even the

most basic right to counsel, if not a want of consideration.’’

The court treated the agreement as a postnuptial

agreement. In so doing, it utilized the type of special

scrutiny that applies to determine the enforceability of

postnuptial agreements. With respect to the judicial

scrutiny to which postnuptial agreements are subject,

our Supreme Court has stated: ‘‘Because of the nature

of the marital relationship, the spouses to a postnuptial

agreement may not be as cautious in contracting with

one another as they would be with prospective spouses,

and they are certainly less cautious than they would

be with an ordinary contracting party. With lessened

caution comes greater potential for one spouse to take

advantage of the other. This leads us to conclude that

postnuptial agreements require stricter scrutiny than

prenuptial agreements. In applying special scrutiny, a

court may enforce a postnuptial agreement only if it

complies with applicable contract principles, and the

terms of the agreement are both fair and equitable at

the time of execution and not unconscionable at the

time of dissolution.

‘‘We further hold that the terms of a postnuptial

agreement are fair and equitable atthe time of execution

if the agreement is made voluntarily, and without any

undue influence, fraud, coercion, duress or similar

defect. Moreover, each spouse must be given full, fair

and reasonable disclosure of the amount, character and

value of property . . . and all of the financial obligations and income of the other spouse. This mandatory

disclosure requirement is a result of the deeply personal

marital relationship.’’ (Footnote omitted.) Bedrick v.

Bedrick, 300 Conn. 691, 703–704, 17 A.3d 17 (2011).

Whether each spouse had a reasonable opportunity to

confer with independent counsel is also a relevant circumstance to consider. Id., 704–705 n.6.

In an examination of the parties’ intentions with

respect to the agreement, the court went beyond the

four corners of the agreement and considered extrinsic

evidence as to the circumstances of its execution, as

required by Bedrick.

The court found that, after the death of her husband,

Sandolo wanted to remain in her own home, however,

she did not wish to live there alone. Accordingly, she

asked the plaintiff and the defendant if they would like

to live with her again. Sandolo indicated that she would

make some substantial improvements to the home if

they would move back in with her. Both parties agreed

to do so. Sandolo called her family attorney to draft

certain documents. On November 9, 2005, the attorney

brought the agreement to Sandolo’s home. The court

found that Sandolo’s primary goal was to be able to
live in her home for the rest of her life, where her

daughter would provide lifetime care, and that the plaintiff’s primary interest was to obtain ultimate, unencumbered title to the property, in return for providing longterm care to Sandolo. The court found: ‘‘[B]oth [Sandolo] and [the plaintiff] have had the benefit of the

bargain. A question for another time is whether or not

[Sandolo] could undo the transfer, should the court

void the [defendant’s] waiver, or, in the alternative,

grant him an interest in the property. The waiver by

the [defendant] of his legal rights was secondary to that

primary bargain, and while it may have been part of

[Sandolo’s] estate plan, it was, nevertheless, mean-spirited, or shortsighted at best, and a likely source of

friction between the spouses at some point. In viewing

the agreement and the circumstances surrounding its

execution, it fails the test of even the most basic right

to counsel, if not a want of consideration. The parties

were already living under the roof at 85 Doolittle Road,

and there is no evidence that they would be evicted in

the absence of the [defendant’s] signature, only that

[Sandolo] would not make the transfer to the [plaintiff].

Moreover, although this agreement does not fall within

the strict definition of a postnuptial agreement, nevertheless, it was executed during the marriage of the

parties. As such, public policy would seem to dictate

that it should be viewed with special scrutiny. . . .

Under all the circumstances, no good societal interest

is served by the enforcement of this provision.

‘‘The foregoing notwithstanding, this court believes

that the protracted, contentious, and acrimonious litigation that would very likely follow the judicial abrogation

of the agreement in question, would do more harm to

all the parties than good. Accordingly, the court has

taken an alternate means to achieve an equitable resolution of this family dispute.’’10 (Citation omitted; internal

quotation marks omitted.)

Although the court expressly declined to abrogate

the agreement, it failed to give effect to that portion of

paragraph 3 of the agreement in which the defendant

declared that in consideration of Sandolo’s gift to the

plaintiff, ‘‘the [p]remises shall at no time be considered

property of he and his wife’s marriage, whether or not

he and his wife’s marriage is at any time dissolved

. . . .’’ When it decided that the remainder interest

deeded to the plaintiff as a result of the agreement was

‘‘a present, vested interest . . . capable of valuation’’

and a ‘‘part of the marital estate for purposes of equitable distribution,’’ the court did abrogate the agreement.

Thus, although the court considered the use of its

equitable powers under §§ 46b-81 and 46b-82 as an alternative to deciding whether the agreement was enforceable, in treating the plaintiff’s remainder interest as part

of the marital estate, the court declined to enforce the

promise made by the defendant to Sandolo11 in para-
graph 3 of the agreement, which was the express consideration for Sandolo’s transfer under paragraph 1.12 After

considering that the agreement the court gave the plaintiff an interest in the property with a value that should

be considered part of the marital estate, the court determined that a just and equitable resolution of the dispute

over a division of the property was to leave the remainder interest vested in the plaintiff and to award the

defendant lump sum alimony in order to provide both

parties with some future financial security. The court

indicated that in arriving at its decision regarding the

award of lump sum alimony and the division of marital

property, the court had taken into consideration the

source of the plaintiff’s principal asset, the remainder

interest in the property, and the present assets of each

party. The court also treated the plaintiff’s remainder

interest as security for the defendant’s lump sum alimony by ordering that, ‘‘in the event of the death of

[Sandolo], the sale, refinance, or other transfer of the

property, or any interest therein, whichever shall sooner

occur, the then outstanding balance shall be due and

payable in full.’’13

We agree with the plaintiff that the court erred when

it declared that it would not decide the issue of the

agreement’s enforceability, but then issued a decision

that resolved that issue by failing to enforce a portion

of the agreement. In this respect, the court’s decision

is internally inconsistent. We also conclude that in

refusing on public policy grounds to enforce the

agreement in its entirety, the court improperly evaluated the agreement by applying the special scrutiny

standard applicable to postnuptial agreements because

the agreement at issue is not a postnuptial agreement.

A postnuptial agreement is an ‘‘agreement entered

into during marriage to define each spouse’s property

rights in the event of death or divorce. The term commonly refers to an agreement between spouses during

the marriage at a time when separation or divorce is

not imminent.’’ Black’s Law Dictionary (9th Ed. 2009);

see also Bedrick v. Bedrick, supra, 300 Conn. 702

(observing that postnuptial agreements are entered into

between spouses who share relationship of mutual confidence and trust).

The agreement in question, however, is not an

agreement between the plaintiff and the defendant. It

includes no direct promises between the plaintiff and

the defendant. It refers to Sandolo as the grantor, to

the plaintiff as the grantee and to the defendant as the

grantee’s husband. The plaintiff’s remainder interest in

the property was not part of the marital estate prior to

the execution and filing of the quitclaim deed contemplated in the agreement, which was delivered and

recorded after the agreement was signed. On its face,

the agreement unambiguously expresses that the

waiver of the defendant’s rights is the consideration
for the promise from Sandolo to transfer, as a gift, a

remainder interest beneficial to the plaintiff, who was

still the defendant’s wife at the time the agreement

was executed.

The agreement should have been analyzed in accordance with established principles of contractinterpretation. ‘‘[A] contract must be construed to effectuate the

intent of the parties, which is determined from the language used interpreted in the light of the situation of

the parties and the circumstances connected with the

transaction. . . . [T]he intent of the parties is to be

ascertained by a fair and reasonable construction of

the written words and . . . the language used must be

accorded its common, natural, and ordinary meaning

and usage where it can be sensibly applied to the subject

matter of the contract. . . . Where the language of the

contract is clear and unambiguous, the contract is to

be given effect according to its terms. A court will not

torture words to import ambiguity where the ordinary

meaning leaves no room for ambiguity . . . . Similarly,

any ambiguity in a contract must emanate from the

language used in the contract rather than from one

party’s subjective perception of the terms. . . .

‘‘[W]here there is definitive contract language, the

determination of what the parties intended by their

contractual commitments is a question of law. . . .

When only one interpretation of a contract is possible,

the court need not look outside the four corners of the

contract.’’ (Citations omitted; internal quotation marks

omitted.) Poole v. Waterbury, 266 Conn. 68, 87–89, 831

A.2d 211 (2003).

In view of the language in paragraph 1, which

expressly stated that the consideration for Sandolo’s

transfer was derived only from the defendant’s waiver

in paragraph 3, the agreement should have been construed as a third party beneficiary contract. In exchange

for the defendant’s promise of consideration, which

was his waiver as contained in paragraph 3, Sandolo

was induced to promise to transfer part of her interest

in the property as a ‘‘gift’’ to the plaintiff. Although the

court found that the primary consideration for Sandolo’s execution of the agreement was the language

contained in paragraph 4 between Sandolo and the

plaintiff, in which the plaintiff promises to care for

Sandolo while they mutually occupied the premises,

that portion of the agreement does not even guarantee

the plaintiff or the defendant a definite right to occupy

the premises with Sandolo until her death, nor does

the plaintiff make any promise to occupy the premises

until the death of Sandolo. As a life tenant, Sandolo

did not waive her right to evict the plaintiff and the

defendant, and the plaintiff did not agree neverto vacate

the premises and live elsewhere during the period of

the life tenancy. The ‘‘promise’’ of caregiving while the

plaintiff occupied the premises, as expressed in the
contract, was an illusory one, easily avoided by Sandolo

or the plaintiff. Thus, it was a token promise, and not

the bargained for promise in the agreement, especially

in light of the clear expressions in the agreement, on

the part of Sandolo, that the conveyance to the plaintiff

was intended as ‘‘gift’’ from Sandolo to the plaintiff.14

We observe that, in its most basic terms, a ‘‘gift’’ is ‘‘the

transfer of property without consideration.’’ (Internal

quotation marks omitted.) In re Probate Appeal of

Mikoshi, 124 Conn. App. 536, 540, 5 A.3d 569 (2010).

Thus, it is more appropriate to consider the plaintiff’s

claim for enforceability of the agreement as a claim by

a third party beneficiary, or a donee beneficiary, to

enforce the benefit Sandolo and the defendant agreed

would be conferred on the plaintiff—the gift of the

remainder interest. Her right to enforce the agreement

is not as an obligee. Her right was created by the promise between Sandolo and the defendant. It is well established in our law that ‘‘[a] third party beneficiary may

enforce a contractual obligation without being in privity

with the actual parties to the contract. . . . Therefore,

a third party beneficiary who is not a named obligee

in a given contract may sue the obligor for breach.’’

(Footnote omitted; internal quotation marks omitted.)

Wilcox v. Webster Ins., Inc., 294 Conn. 206, 217, 982

A.2d 1053 (2009).

Having recognized the plaintiff’s right to seek

enforcement of the contract even though it is not a

postnuptial agreement wherein the defendant and the

plaintiff made any direct promises to one another, the

determination of whether it is enforceable is subject to

ordinary contract principles, not the special scrutiny

applicable to postnuptial contracts required under

Bedrick v. Bedrick, supra, 300 Conn. 703–704.

In light of the court’s observations, among the issues

it may choose to consider on remand is whether the

contract should be declared void as against public policy on the ground that it is an agreement between a

spouse and a third party that was intended at the time

it was made to promote, facilitate or provide an incentive for divorce.15 See Gould v. Gould, 261 App. Div. 733,

27 N.Y.S.2d 54 (written guarantee agreement whereby

defendant guaranteed payment of monthly sums upon

condition that plaintiff promptly procure a divorce from

her husband was void as against public policy), leave

to appeal denied, 262 App. Div. 833, 29 N.Y.S.2d 503

(1941); 7 R. Lord, Williston on Contracts (4th Ed. 2010)

§ 16:19, pp. 531–49 (discussing public policy arguments

concerning agreements promoting or facilitating

divorce). Whether a contract is against public policy is

a question of law dependent on the circumstances of

the particular case. ‘‘[A]s a general matter, the courts

do not apply the rule of unenforceability in as absolute

a fashion as the traditional statement of the rule [that

contracts violative of public policy are unenforceable]
might indicate. The legal effect of contracts contrary

to public policy varies with the character of the factors

that cause them to be against public policy. In the criminal law, a felony is worse than a misdemeanor and

the penalties vary accordingly. So it is with a contract

violative of public policy. There are degrees of enforceability and thus a variety of techniques used by courts

that fall short of complete enforceability but also

exceed complete unenforceability.’’ 15 G. Giesel, Corbin

on Contracts (J. Perillo ed., Rev. Ed. 2003) § 79.1, p.

5.16 When a promise or other term of an agreement is

unenforceable on grounds of a public policy that is not

legislatively declared, the court may determine if the

interest in its enforcement is clearly outweighed in the

circumstances by a public policy against the enforcement of its terms. See 2 Restatement (Second), Contracts § 178, p. 6 (1981). Courts have enforced contracts

involving performances contrary to public policy when

they have determined that enforcement under the particular circumstances is more just. See 15 G. Giesel,

supra, § 89.1, p. 614.

‘‘[A] decision as to enforceability is reached only after

a careful balancing, in the light of all the circumstances,

of the interest in the enforcement of the particular

promise against the policy against the enforcement of

such terms.’’ 2 Restatement (Second), supra, § 178,

comment (b), p. 8. ‘‘In some cases the contravention

of public policy is so grave, as when an agreement

involves a serious crime or tort, that unenforceability

is plain. In other cases the contravention is so trivial

that it plainly does not preclude enforcement.’’ Id. Section 178 of the Restatement (Second) of Contracts provides in relevant part: ‘‘(2) In weighing the interest in

the enforcement of a term, account is taken of (a) the

parties’ justified expectations, (b) any forfeiture that

would result if enforcement were denied, and (c) any

special public interest in the enforcement of the particular term. (3) In weighing a public policy against enforcement of a term, account is taken of (a) the strength

of that policy as manifested by legislation or judicial

decisions, (b) the likelihood that a refusal to enforce

the term will further that policy, (c) the seriousness of

any misconduct involved and the extent to which it was

deliberate, and (d) the directness of the connection

between that misconduct and the term.’’ Id., § 178, pp.

6–7. On remand, prior to reconsidering the financial

orders relative to the dissolution, the court should considerthe agreement as a third party beneficiary contract

between the defendant and Sandolo, make any factual

inquiries necessary for that inquiry, and determine the

extent of its enforceability accordingly.17

II

We next address the plaintiff’s claim that the court

committed error when it reopened the evidence, sua

sponte, in order to allow the parties the opportunity to
offer additional evidence regarding the valuation of the

plaintiff’s remainder interest in property that she

owned, but in which Sandolo retained a life estate.

Although we are remanding this case to the trial court

for further proceedings related to the enforceability of

the agreement between the parties and Sandolo, we

will address the present claim related to the issue of

the valuation of the plaintiff’s remainder interest in the

property because the types of issues involved herein

may arise on remand. See Edmond v. Foisey, 111 Conn.

App. 760, 773 n.14, 961 A.2d 441 (2008) (reviewing court

may resolve claims that are not necessary forresolution

of appeal but may arise during proceedings on remand).

The following additional facts are relevant to this

claim. During the trial, the plaintiff called a real estate

appraiser, Liguori, as an expert witness to testify as to

the value of the property and the value of the plaintiff’s

remainder interest in it. The defendant called another

real estate appraiser, Tooher, who testified to the same

issues. Each of these appraisers employed a different

methodology in placing a value on the remainder interest. OnAugust 14, 2013, after hearing closing arguments,

the court indicated to the parties that it had some serious reservations about the imperfect approach that the

two real estate appraisers called by each side had taken

in placing a value on the plaintiff’s remainder interest.

Specifically, the court stated, ‘‘I believe that . . . Liguori’s approach, you know, the format that he used, is

more consistent with arriving at a more accurate residuary value of [the] residuary estate.

‘‘So, having said that, I have some serious reservations. And I think I articulated them, and I’ll say it again,

with regard to the discount rate. And he did say on the

[witness] stand that he was aware of the fact that a

high discount rate would inure toward the benefit of

[the plaintiff]. . . .

‘‘So, if his formula is okay, but the variables that he

inserts in the formula are not correct, or, you know,

they’re one way or the other, that can skew the ultimate result.

‘‘So, supposing I agree with you? And I agree that

. . . Tooher’s approach was too simplistic. But I agree

with you that your expert, [Liguori], his approach was

correct. But I don’t believe that he used the correct

discount rate. . . . What do I do as a judge?’’

The court went on to indicate that it was aware of

a case in New Haven, without specifying the case name,

where the judge did not accept the experts’ testimony

and instead ‘‘went to the federal tables . . . and came

up with a number. . . .

‘‘And I, you know, [if] memory serves me, there is a

floating table, [a] floating rate that the Internal Revenue

[Service (IRS)] of the Department of Treasury comes

out with on a regular basis. Either on a weekly or on
a monthly basis that sets the appropriate discount rate

[that] could be utilized in the event of estates and trusts

and [whatnot].

‘‘So, I just throw that out to you, because, you know,

the case law is very, very clear. The court does not

have to believe either expert. . . .

‘‘But I believe that the case law says that the court

must find a reasonable, rational basis and articulate the

basis for its decision.

‘‘And anyway, that’s one of the dilemmas that I have.’’

The court also referred the parties, again, to the cautionary lesson of Mensah v. Mensah, supra, 145 Conn.

App. 644. See footnote 3 of this opinion.

On November 1, 2013, after both parties had rested

and presented their closing arguments to the court, the

court asked the parties to return to court and engaged

them in a discussion on the record concerning what

the court considered a ‘‘nagging problem’’ with respect

to finalizing its decision. The court reiterated that it

had a grave problem with the discountrate of 10 percent

used by Liguori, the plaintiff’s expert, and that it had

consulted the IRS website and determined that its discount rate for May, 2013, was ‘‘something on the order

of a shade under 2 percent, and that’s a far cry from

the 10 percent.’’

The court then stated, ‘‘I would like to give both of

you the opportunity to come back . . . [and] plow the

same ground . . . but, I mean, I would strongly suggest

that both of you guys either get together and agree [on]

a valuation for the remainder interest . . . or you both

can go back to your experts and come up with a methodology, I mean, with a remainder [value]. . . . And . . .

I’m opening the evidence for that, and you guys will

have an opportunity to make your case with regard to

the discount rate and the value of the remainder

interest.’’

On that same date, both counsel agreed to report back

to the court in two weeks. Neither counsel objected to

the reopening of the evidence. The following colloquy

then occurred between the court and the plaintiff’s

counsel:

‘‘[The Plaintiff’s Counsel]: Just to be clear, we’re,

essentially, back on trial because you’re reopening

the evidence?

‘‘The Court: Absolutely. But only for this limited

purpose.

‘‘[The Plaintiff’s Counsel]: I understand. For timing

purposes.’’

On March 11, 2014, the plaintiff filed a motion to

reopen evidence, seeking permission to present additional testimony from her business attorney, Hoffman,

regarding the further deterioration of her financial con-
dition since the date of the last hearing. On March

14, 2014, the court heard additional evidence, which

included not only new expert testimony from Murray,

a certified public accountant called by the defendant

who was extensively cross-examined by the plaintiff,

but also additional testimony from the plaintiff’s

appraisal expert, Liguori, to rebut Murray’s testimony.

Further, Hoffman testified in support of the plaintiff’s

claim that her financial condition had worsened since

the date that the court had last heard evidence in

August, 2013. Therefore, at the plaintiff’s request, the

court expanded the purpose of the reopening of the

evidence.

We review a trial court’s decision to reopen evidence

underthe abuse of discretion standard. ‘‘In any ordinary

situation if a trial court feels that, by inadvertence or

mistake, there has been a failure to introduce available

evidence upon a material issue in the case of such a

nature that in its absence there is a serious danger of

a miscarriage of justice, it may properly permit that

evidence to be introduced at any time before the case

has been decided. . . . Whether or not a trial court

will permit further evidence to be offered afterthe close

of testimony in a case is a matter resting in the sound

discretion of the court.’’ (Citation omitted; internal quotation marks omitted.) Wood v. Bridgeport, 216 Conn.

604, 606, 583 A.2d 124 (1990). ‘‘In determining whether

there has been an abuse of discretion, every reasonable

presumption should be given in favor of the correctness

of the court’s ruling. . . . Reversal is required only

[when] an abuse of discretion is manifest or [when]

injustice appears to have been done. (Internal quotation

marks omitted.) Patino v. Birken Mfg. Co., 304 Conn.

679, 698, 41 A.3d 1013 (2012); see also Weiss v. Smulders, 313 Conn. 227, 261–62, 96 A.3d 1175 (2014) (no

error for court to refuse to reopen evidence for hearing

on damages under abuse of discretion standard when

trial court already had ordered, sua sponte, further evidentiary proceedings after close of evidence, and party

offered ample opportunity to obtain and present

evidence).

In the present case, the court indicated its concern

about the holding in Mensah v. Mensah, supra, 145

Conn. App. 644, in which the judgment of the trial court

was reversed after it had indicated that it did not have

sufficient evidence of the parties’ financial circumstances, had denied a continuance to secure further

documentation, and had issued financial orders as part

of its dissolution judgment. See id., 653–54. In this case,

having expressed reservations about the manner in

which the parties’ experts had calculated the value of

the plaintiff’s remainder interest, the only significant

asset in the parties’ marital estate that was in dispute,

it would have been injudicious of the court to have

proceeded to decide on financial orders without asking

for additional evidence after having explicitly stated,
on several occasions, that it did not view the valuation

evidence as persuasive evidence.18 Proceeding in this

manner only would have led to a claim of injustice by

at least one of the parties and in all likelihood, in light

of Mensah, reversal of the judgment on appeal.

This is not a situation where either party had moved

for a directed verdict or a dismissal that was based

upon the other party’s failure to present a prima facie

case, whereafter the court reopened the evidence to

permit the nonmoving party to cure a deficiency called

to the court’s attention by the other party’s motion. See

State v. Allen, 205 Conn. 370, 383–85, 533 A.2d 559

(1987) (improper for motion for acquittal at close of

state’s evidence to result in opening of evidence,

affording state another opportunity to furnish evidence

essential to prove element of crime shown by defendant

to have been omitted from its case-in-chief). Both parties had finished presenting their cases in full and had

rested before the court reopened the evidence. To

address the court’s concern with respect to an issue of

valuation for which neither party presented the court

with persuasive evidence to guide it, each party was

permitted ample opportunity, in fact, over four months,

to develop a persuasive response to the court’s concern,

and to address it with further evidence and argument.

In addition, the court permitted the plaintiff, despite

having opened the evidence for the limited purpose of

hearing further testimony on the value of the remainder

interest, to present additional evidence as to changes in

the financial circumstances of the plaintiff’s restaurant

business since August, 2013, the date that the trial had

initially concluded. Although the defendant might have

had cause to complain about the expansion of the limited purpose of the March 14, 2014 hearing, we perceive

no injustice or substantial prejudice to the plaintiff in

the manner in which the court conducted that hearing.

Finally, a review ofthe record, including the plaintiff’s

response to the court’s proposal to reopen the evidence,

reveals that the plaintiff acquiesced in the court’s conducting of additional proceedings on March 14, 2014.

First, the plaintiff failed to express any objection to the

court’s proposal to reopen the evidence. At no point

did the plaintiff complain, as she does now on appeal,

that the court had impermissibly ‘‘interjected itself into

the debate to invite testimony to comport with information it had gleaned from its own Internet research on

the IRS website, which it performed after the close of

evidence,’’19 that the court had ‘‘no basis in the record

[for disbelieving] both [Liguori and Tooher],’’ or that it

was ‘‘unfair to throw a completely different matrix at

the parties after they had already invested so much in

the trial strategy and approach that they each freely

chose with the assistance of counsel.’’ (Emphasis

omitted.)

By participating in the reopened portion of the pro-
ceedings by not only cross-examining Murray, the

defendant’s new expert witness, but also by recalling

as a witness, Liguori, her expert appraiser; moving for

permission to call a new witness, Hoffman, to testify

about a different subject; and electing to present and

to rely on new facts that were not previously in evidence, as testified to by both Liguori and Hoffman,

the plaintiff fully acceded to the court’s exercise of its

authority to reopen the hearing. ‘‘If [a party] has full

knowledge of improper conduct (or what he perceives

to be improper procedure) he cannot remain silent,

hoping for a favorable ruling, and then be heard to

complain when the order is unsatisfactory.’’ Walsh v.

Walsh, 190 Conn. 126, 132, 459 A.2d 515 (1983); see

generally 1 B. Holden & J. Daly, Connecticut Evidence

(1988) § 12, pp. 72–89 (discussing principles of argument in context of order of testimony). ‘‘Disappointed

litigants must not be encouraged to use an appeal as

an opportunity to raise a claim that assaults the integrity

of the trial court at its most fundamental level without

having given the court, and the opposing party, an

opportunity to respond. In the absence of an objection

and an adequate record in the trial court, this court

should not countenance such claims by reviewing them

unless the record demonstrates . . . that a reasonable

person would conclude that the proceeding fundamentally was unfair.’’ (Footnote omitted.) Wiegand v. Wiegand, 129 Conn. App. 526, 543–44, 21 A.3d 489 (2011)

(Lavine, J., concurring). We repeatedly have expressed

our disfavor ‘‘with the failure, whether because of a

mistake of law, inattention or design, to object to errors

occurring in the course of a trial until it is too late for

them to be corrected, and thereafter, if the outcome of

the trial proves unsatisfactory, with the assignment to

such errors as grounds of appeal.’’ (Internal quotation

marks omitted.) Jones v. Ippoliti, 52 Conn. App. 199,

206, 727 A.2d 713 (1999).

On the basis of our review of the record, we conclude

that the court acted prudently and reasonably in giving

the parties an opportunity to supplement their initial

expert presentations as to the value of the plaintiff’s

remainder interest, which it considered inadequate.

Accordingly, we conclude that the court’s reopening of

the evidence was not an abuse of its discretion.

III

The plaintiff’s third claim is that the court erred in

adopting the valuation of her remainder interest proposed by one of the defendant’s experts, Murray, whom

the plaintiff maintains was not qualified to appraise the

value of that interest. The plaintiff makes two arguments relating to this claim, which we shall address in

turn. As we reasoned with respect to the claim

addressed in part II of this opinion, despite the fact

that we will remand the present case to the trial court

for further proceedings related to the enforceability of
the parties’ agreement with Sandolo, we will resolve

the present claim because the issues involved herein

may arise during the proceedings on remand.

A

The plaintiff first argues that there was no basis in the

record for disbelieving the testimony of either Liguori

or Tooher, who, although utilizing different methods,

arrived at similar valuations of the plaintiff’s remainder

interest. We disagree, concluding that the court had

good reason not to adopt the expert valuation of either

Liguori or Tooher, and did not abuse its discretion in

accepting Murray’s expert opinion as to the present

value of the plaintiff’s remainder interest.

‘‘Whether a witness is qualified to testify as an expert

is a matter that rests in the sound discretion of the trial

court. . . . The role of an expert witness is to furnish

the trier with special guidance drawn from his or her

particular training, knowledge or experience.’’ (Citations omitted.) DiBella v. Widlitz, 207 Conn. 194, 202,

541 A.2d 91 (1988).

‘‘Ultimately, the determination of the value of the

property [is] a matter of opinion and depend[s] on the

considered judgment of the [trial court], taking into

account the divergent opinions expressed by the witnesses and the claims advanced by the parties. . . .

Accordingly, we review the court’s findings under the

highly deferential, clearly erroneous standard ofreview.

[W]e do not examine the record to determine whether

the trier of fact could have reached a conclusion other

than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which

it arrived at that conclusion, to determine whether it

is legally correct and factually supported. . . . A finding of fact is clearly erroneous when there is no evidence to support it . . . or when although there is

evidence in the record to support it, the reviewing court

on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.’’ (Citation omitted; internal quotation marks omitted.) Dept.

of Transportation v. Cheriha, LLC, 155 Conn. App. 181,

191–92, 112 A.3d 825 (2015).

The following additional facts and procedural history

are relevant to this claim. The plaintiff called as her

expert witness Liguori, a state licensed residential real

estate appraiser. Liguori evaluated the present fair market value of the property and its improvements on the

basis of comparable sales, at $1,280,000. His opinion

was supported by a written appraisal report that was

admitted as evidence. Relying on a 1998 article by David

Keating, which was excerpted from his book, ‘‘Appraising Partial Interests,’’ and admitted into evidence, Liguori calculated the net present value of the plaintiff’s

remainder interest as follows: he appraised the current

fair market value of the property, applying a historical
ten year appreciation rate of residential real estate values to forecast what the fair market value of the property would be in 12.1 years. Liguori utilized 12.1 years in

his calculations because he determined from a mortality

table that this was the probable life expectancy of Sandolo, the holder of the life estate in the property, who

was then seventy-five years old. Liguori then determined that the future fair market value of the property

in 12.1 years would be $1,627,000, based upon an estimated annual appreciation rate of 2 percent. Next,

applying Keating’s formula, Liguori calculated the net

present value of that future fair market value by utilizing

a discount rate of 10 percent, which was suggested in

a hypothetical scenario in Keating’s article. Accordingly, he found the value of the plaintiff’s remainder

interest to be $513,300.20

The defendant called as his expert Tooher, a licensed

residential real estate appraiser with twenty-eight years

of experience, who had a senior real estate appraiser

certificate from the American Institute of Real Estate

Appraisers. Tooher testified that he had experience in

appraising these kinds of interests in real estate. Tooher’s written appraisal report also was submitted into

evidence. Using comparable sales, Tooher found the

fair market value of the property to be $1,325,000, or

roughly 5 percent more than the value determined by

Liguori. He then applied a ‘‘remainderman multiplier’’

of .47851, which he derived by inserting the age of the

life tenant, Sandolo, into a chart he had found in a prior

appraisal file in which he had appraised a remainder

interest. Tooher multiplied the fair market value by the

multiplier and appraised the value of the remainder

interest at $634,000, about 20 percent higher than Liguori’s appraisal. Tooher indicated that he had obtained

the chart that he employed from a website on the

Internet, and that it was a ‘‘well established national

chart that accountants and attorneys use [called] the

‘Life Estate RemainderInterest Chart.’ ’’ Tooher did not,

however, identify what person or organization had published the chart. Tooher testified that he believed that

the Keating method, although recommended by the

appraisal institute, was too subjective and that he had

avoided employing it in an effort to eliminate subjectivity.

On appeal, the plaintiff first argues that the court had

no basis for rejecting the testimony of both Liguori and

Tooher. We disagree. ‘‘[T]he weight to be given the

evidence and the credibility of the witnesses are within

the sole province of the trial court.’’ Stearns v. Stearns,

4Conn.App. 323, 327, 494A.2d 595 (1985). ‘‘The credibility and the weight of expert testimony is judged by the

same standard, and the trial court is privileged to adopt

whatever testimony [it] reasonably believes to be credible.’’ (Internal quotation marks omitted.) United Technologies Corp. v. East Windsor, 262 Conn. 11, 26, 807

A.2d 955 (2002). ‘‘[T]he trial judge . . . is free to accept
or reject, in whole or in part, the testimony offered

by either party.’’ (Internal quotation marks omitted.)

LaBossiere v. Jones, 117 Conn. App. 211, 224, 979 A.2d

522 (2009).

‘‘[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 whole record, those facts are clearly erroneous. . . . Although we give great deference to the findings of the trial court because of its function to weigh

and interpret the evidence before it and to pass upon

the credibility of witnesses . . . we will not uphold a

factual determination if we are left with the definite

and firm conviction that a mistake has been made. . . .

In applying the clearly erroneous standard of review,

[a]ppellate courts do not examine the record to determine whether the trier of fact could have reached a

different conclusion. Instead, we examine the trial

court’s conclusion in order to determine whether it

was legally correct and factually supported.’’ (Citation

omitted; internal quotation marks omitted.) Wyszomierski v. Siracusa, 290 Conn. 225, 237–38, 963 A.2d 943

(2009). ‘‘Where the trial court rejects the testimony of

a plaintiff’s expert, there must be some basis in the

record to support the conclusion that the evidence of

the [expert witness] is unworthy of belief.’’ (Internal

quotation marks omitted.) Builders Service Corp. v.

Planning & Zoning Commission, 208 Conn. 267, 294,

545 A.2d 530 (1988).

In the present case, the court did not accept, and

need not have accepted, the expert opinion of either

Liguori or Tooher. Both of these witnesses, in the

court’s opinion, took shortcut approaches to the calculation process and were unable to explain how the

formulas they employed had actually been derived by

their appraisal industry proponents. The court commented that Tooher’s approach, in which he used a

vaguely identified chart, was ‘‘too simplistic.’’

The court further expressed concerns with respect to

the high 10 percent discount rate employed by Liguori,

noting that Liguori admitted in his testimony that he

assumed that the plaintiff, in hiring him, had wanted a

lower valuation rather than a higher one. The Keating

article upon which Liguori relied, which was admitted

into evidence, explains generally that ‘‘[t]he applicable

discount rate is a function of the property type, market

conditions and the expected date of death,’’ but it does

not explain how those factors had led to his calculation

of a 10 percent discount rate. Moreover, Liguori was

unable to explain to the court’s satisfaction how to

calculate a discount rate reflective of current circumstances, using 2013 or 2014 market conditions. Aptly,

the court expressed concern that the ultimate valuation

would be skewed if the variables inserted into the for-
mula were not correct.

On the basis of our review of the record, it appears

that the court was willing to accept the Keating methodology of valuation advocated by Liguori, but not

Liquori’s application of a 10 percent discount rate. During Liguori’s testimony, the court indicated that it was

struggling with the use of a present value that would

appreciate 10 percent every year, referring to such a

yield as a ‘‘heck of a good investment.’’ Later, the court

indicated its conclusion that the 10 percent discount

rate was ‘‘way off. And part of it, I believe, is because

[Liguori] got his methodology, he may have got it correct, but he got it from a 1998 article, and you know,

that’s a few years ago, that’s fifteen years ago.’’

In this case, we agree, on the basis of the court’s

findings, that the opinions of Liguori and Tooher were

predicated on ‘‘uncertainties in the essential facts . . .

such as to make [their opinions] . . . without substantial value.’’ (Internal quotation marks omitted.) Wyszomierski v. Siracusa, supra, 290 Conn. 244. Accordingly,

we do not deem clearly erroneous the court’s rejection

of all of Tooher’s testimony and part of Liguori’s testimony, which ultimately led it to reopen the evidence

to allow the parties to agree on a value or to revisit the

applicable discount rate.

B

The plaintiff’s second argument relating to her claim

that the court erred in accepting the testimony of Murray is that Murray was not qualified as a real estate

appraiser and he had not calculated the value of the

plaintiff’s remainder interest using a relevant discount

rate. We agree with the plaintiff that the court should

not have determined that one of the discount rates

proposed by Murray for insertion into the Keating formula was appropriate.

The following additional facts are relevant to this

claim. At the time of his testimony, Murray was a senior

manager at the accounting firm of Blum, Shapiro & Co.,

P.C., who specialized primarily in business valuation.

He was a licensed certified public accountant, an

accredited business valuator, and an accredited senior

appraiser of the American Society of Appraisers. He

also was certified in financial forensics by the American

Institute of Certified Public Accountants. In support of

his testimony, Murray also submitted a written report,

which was admitted into evidence. Attached to Murray’s

report was a list of his specializations, which included

matrimonial disputes and estate and gift tax reporting,

as well as a list of articles that he had authored or coauthored. Although he was not a real estate appraiser,

Murray indicated that he valued intangible assets on a

regular basis. However, although he had valued remainder interests in life estates, the making of such valuations was not listed as one of his areas of expertise
on his firm’s website. Furthermore, Murray had never

testified about the valuation of a remainder interest in

real property until his testimony in the present case.

Prior to the commencement of Murray’s testimony,

the plaintiff objected to his qualifications and to the

relevance of his testimony, arguing that the two discount rates he had chosen were related to entirely different investments and had never been accepted as

proper tools for determining discount rates applicable

to the appraisal of remainder interests in real property.

The court overruled the plaintiff’s objection.

As explained in his report, Murray accepted the present fair market value of the property calculated by

Liguori, $1,280,000. He explained that the Keating

method of valuation is a common method used to calculate the value of a remainder interest. Under this

method, he explained, ‘‘a future expected value of the

property is estimated based on (1) the current value of

the underlying property, and (2) a growth assumption

over the expected life of the life tenant. The estimated

future value is discounted back to present value based

on risk of the underlying property.’’ Murray then analyzed Liguori’s calculation. First, he noted that Liguori

had used a figure of 12.1 years, instead of the correct

figure of 11.1 years, as the life expectancy of the life

tenant, Sandolo. This error produced an incorrect

expected future value of the property encumbered by

the life estate, which formed the basis for Liguori’s

calculation of the plaintiff’s remainder interest. Murray

then indicated that his own use of the correct life expectancy of 11.1 years in the calculation yielded an

expected future value of the property at the time of the

life tenant’s death $1,594,764.

With respect to the discount rate, Murray opined that

Liguori had erred in his calculation. Specifically, Murray

opined that Liguori had used an unsupported discount

rate that was not realistic; he also noted that Liguori

had failed to include any empirical evidence supporting

his choice of a 10 percent discount rate, notwithstanding the fact that the example presented in the Keating

article had used a 10 percent discountrate.In his written

report, Murray wrote: ‘‘It is unlikely that this property

could achieve a 10 percent return. Mr. Liguori concluded on a value of the residence of $1,280,000. In

addition . . . Liguori’s property appraisal indicates

that [the] property taxes are $16,724 per year. In order

for this property to achieve a 10 percent return, the

property would need to generate monthly rent of

$14,194.’’ Murray then noted that because the life tenant

has the right to use and occupy a parcel of real estate

forthe duration of his or herlife, a life estate is comparable to a tenancy arrangement in a single-family home,

which produces an income stream in the form of rent.

He noted that the risk, therefore, should be measured

in terms of the risk of an income stream produced by
the rental of a single-family home. In connection with

his expert analysis of the property, Murray had

researched real estate rental listings of single-family

homes available forrent in Stamford and had concluded

that an average of $9,317.00 per month was a more

realistic monthly rent for similar sized, single-family

homes in Stamford. Although Murray used his discussion of a more appropriate rent value for the property

to undermine Liguori’s analysis, we note that he did

not proceed, as Keating suggested in his article, to evaluate the present value of Sandolo’s life estate on the

basis of its market rental value over her life expectancy,

which then would have to be discounted to present

value.21

As previously noted, over the plaintiff’s objection,

the trial court permitted Murray to testify about discount rates that potentially applied to the value of the

plaintiff’s remainder interest. Murray inserted two of

his discount rate selections into the Keating formula to

arrive at two alternate valuations significantly higher

than the values testified to by Liguori and Tooher. One

ofthese rates, theApplicable FederalRate (AFR), which

the court adopted, was identified by Murray as a ‘‘rate

. . . used for debt instruments that don’t have stated

interest rates [by the IRS]. So, usually, it’s used if there’s

a related party transaction and they need to apply an

interest rate . . . .’’ The AFR, available on the IRS website, is used by the IRS to impute an interest rate to a

family loan transaction where one is not stated, and

at the time of trial, it was 3.37 percent.22 When the

defendant’s counsel asked Murray whetherthe IRS used

the AFR to evaluate the value of a remainder interest,

the plaintiff objected, claiming that there is ‘‘zero connection’’ between the imputed rate on family loans and

the evaluation of a remainder interest in residential real

estate. The court sustained the objection.23 Murray then

admitted that although he had read the Keating article,

he did not know the basis for his application of the 10

percent discount rate back in 1998. He also admitted

that there was no market for a remainder interest in a

life estate.

The plaintiffrecalled Liguori to dispute the applicability of the discount rates cited by Murray due to the

limited liquidity of a remainderinterest. Liguori testified

that ‘‘[a] remainder interest is a very narrow buyer’s

market. You can’t advertise this on a multiple listing.

People are not going to come and buy this house

because it’s going to be tied up for twelve, twenty years,

or however many years. You can’t use the house. There’s

no tangible working model that you can do with it

except wait.’’

The plaintiff also asked Liguori to explain to the court

if he had arrived at his discount rate of 10 percent by

other means, apart from reading it in the hypothetical

discussed in Keating’s article. Liguori attempted to
explain that because one has very little opportunity to

exercise any property rights in a remainder interest

until the life tenant dies, investment in a remainder

interest entails high risk, unlike the investments that

Murray referenced in calculating his recommended discount rates: loaning money at interest or purchasing

an investment in a real estate investment trust. Liguori

also explained in this testimony that one cannot finance

a remainder interest at a regular rate and can only

finance it at a higher rate because one cannot occupy

the property, sell it, or liquefy it quickly. As a result,

Liguori explained, if a party wanted to buy the plaintiff’s

remainderinterest, it would want to purchase the house

for much less than its fair market value because it might

have to wait for a significant time to exercise property rights.24

The court, however, still was not persuaded by Liguori’s explanation of how he had arrived at a 10 percent

discount rate, which he called a conservative estimate

in light of the range of investment risks between a low

risk of 1 percent on a Treasury bill and a high risk of

30 percent for a developer building homes. Again, Liguori was unable to fully explain a precise method by

which to calculate a discount rate pertaining to a

remainder interest valuation. Furthermore, he was

unable to specify, to the court’s satisfaction, a currently

accepted discount rate that was based on market conditions, property type, or the expected date of the life

tenant’s death. Liguori did not establish persuasively

the derivation of a higher discount rate by any specific

formulation, as suggested in the Keating article, and

the court again rejected his adherence to a 10 percent

discount rate. Instead, the court accepted the discount

rate proposed by Murray, which was based on the AFR,

the rate applied to related party loan transactions.

Despite the fact that the plaintiff has little prospect for

accessing the value of her remainder interest in the

property for the period of Sandolo’s actuarial lifespan,

the court found the present value of the plaintiff’s

remainder interest to be $1,103,806 against a current

fair market value of $1,280,000, which was greater than

86 percent of its actual fair market value.

As previously noted, we agree that it was proper for

the court to reject the testimonial assertions of Liguori

and Tooher as unpersuasive due to their inability to

explain the derivation of the formulas that they used

in their proposed methodologies. We also conclude,

however, that the court, in placing a value on the plaintiff’s remainder interest, erroneously relied on Murray’s

testimony because it did not properly apply the Keating

methodology, which the court specifically had adopted.

The court indicated that it had accepted the Keating

methodology, which proposed calculating a discount

rate on the basis of several factors.25 In his article,

Keating explained that ‘‘[f]orecasting a future value and
then discounting it back to present value again may

seem illogical, especially when current value is already

known.26 But the procedure is necessary, however, as

the current value of the property is an unencumbered

value, and the appraisal assignment is to estimate the

value of a property encumbered by a life estate. The

applicable discount rate is a function of the property

type, market conditions and the expected date of

death.’’ (Footnote added.) Keating’s article, unfortunately, did not give any formulaic basis for his determination of the appropriate discount rate, or describe

how, in his hypothetical, he had arrived at a 10 percent

discount rate.27 The article also suggested a methodology for valuing the interest of the life tenant, and it was

this discussion to which Murray only partially alluded in

his report. After calculating the value of the remainder

interest in his hypothetical, Keating also calculated the

value of the life tenant’s estate by using the market rent

for the home occupied by the tenant. He then noted

that if market rents were forecast to increase at a rate

of 3 percent per year overthe remainder of the expected

life of the life tenant, the value of her interest at the

same 10 percent discountrate could be calculated. With

this calculation in his hypothetical, Keating produced

a value for the life tenant’s interest that could be added

to the value of the remainderman’s interest and result

in a total amount that would be nearly equivalent to

the present fair market value of the home. Murray never

engaged in this latter exercise of calculating the value

ofthe estate ofthe life tenant, Sandolo, despite spending

a considerable amount of time discussing how much

rent Sandolo would be paying if the home was rented

to her at market rates. Therefore, we are unable to

perceive how the court properly could have concluded

that the discount rate applied by Murray would have

achieved results consistent with the hypothetical in the

Keating article. We reach this conclusion, as we are

unable to determine if the discounted present value of

Sandolo’s life estate interest, based on the employment

of market rental rates over the next 11.1 years, together

with the value of the plaintiff’s remainder interest proposed by Murray, would have been approximately

equivalent to the present fair market value of the home.

In light of Murray’s opinion that there is no market

for investment in remainder interests, we agree with

the plaintiff that Murray’s use of discount rates applicable to low risk investments had no relation to a high

risk investment like the purchase of a remainder interest, nor were they mentioned as proper discount rates

for the appraisal of either a life estate or remainder

interest in Keating’s methodology, which the court

accepted as proper.

We are mindful that‘‘the trial court need not necessarily specify a valuation method used. Nor is the court

required to set forth specific factors that were considered in arriving at that determination.’’ South Farms
Associates Ltd. Partnership v. Burns, 35 Conn. App.

9, 18, 644 A.2d 940, cert. denied, 231 Conn. 912, 648

A.2d 157 (1994). Here, however, the court indicated that

it was employing Keating’s approach to valuation, an

approach with which neither Liguori nor Murray took

issue. The question, therefore, is not whether the court

utilized a correct approach to valuation, but whether

the court’s determination of value in using the Keating

approach was clearly erroneous.

We reiterate that ‘‘[i]n selecting and applying an

appropriate valuation method, the trial court has considerable discretion. . . . The trial court’s findings will

be overturned only if it misapplies, overlooks, or gives

a wrong or improper effect to any test or consideration

which it was [its] duty to regard.’’ (Citation omitted;

internal quotation marks omitted.) Bornemann v.

Bornemann, supra, 245 Conn. 532. We conclude that

the court, in the face of three divergent explanations

of valuation, lost sight of the rationale underlying Keating’s proposed methodology, which it indicated that it

had accepted, and veered into an unfounded comparison between returns on common, low risk investments

and the return on a less common, higherrisk investment

in a remainder interest in real property. ‘‘Although the

court has leeway in determining the value of assets

in a marital dissolution, a market value approach to

valuation, nevertheless, necessarily requires an examination of the marketability of the asset being

appraised.’’ Brooks v. Brooks, 121 Conn. App. 659, 668,

997 A.2d 504 (2010).

In the present case, both Liguori and Murray agreed

that the marketability of the plaintiff’s remainder interest was practically nil, so long as the life estate interest

remained vested in Sandolo, yet the court, on the basis

of Murray’s testimony, ascribed a value to it that was

the near equivalent of the real property’s present fair

market value. The court failed to examine and draw

necessary conclusions regarding the amount that a willing buyer would pay for the plaintiff’s remainder interest in the property. Thus, on the basis of the entire

evidence presented as to the valuation of a remainder

interest, we, as the reviewing court, are ‘‘left with the

definite and firm conviction that a mistake has been

committed.’’ (Internal quotation marks omitted.) St.

Joseph’s Living Center, Inc. v. Windham, 290 Conn.

695, 707, 966 A.2d 188 (2009).

The judgment is reversed only as to the court’s financial orders and the case is remanded to the trial court

for further proceedings, consistent with this opinion,

with respect to the enforceability of the parties’

agreement with the plaintiff’s mother and with respect

to all of the court’s financial orders. The judgment is

affirmed in all other respects.

In this opinion the other judges concurred.

1 On the basis of our conclusion that the court mustreconsider all financial
orders as a result of the error it committed in determining the value of the

plaintiff’s remainder interest in the property she owned but in which her

mother, Marianna Sandolo, retained a life estate, we need not reach the

plaintiff’s final claim regarding the award of lump sum alimony.

2

In Mensah v. Mensah, supra, 145 Conn. App. 645–46, this court held that

a trial court’s orders with respect to alimony, child support, and the division

of the marital estate lacked the requisite evidentiary basis and could not

stand, as the trial court did not have sufficient financial information from

the parties to issue fair and equitable dissolution orders. The trial court

entered financial orders even though it expressly had found that the parties

had failed to produce requisite discovery information as to the amount and

sources of their income, the value of the wife’s pension plan, or the defendant’s businesses. Id., 647–48. The lesson in Mensah is that a court needs

properfinancial information to enter orders that are not based on speculation

and conjecture. Id., 653.

3 Subsequent to the filing of this appeal, the plaintiff sought an articulation

from the trial court. In its articulation dated August 14, 2014, the court

explained that ‘‘[a]fter the evidence was closed, the court remained unconvinced that the appropriate discount rate had been applied, [so it] visited

a website simply to check the historical [Internal Revenue Service] discount

rate. After doing so, and in light of the recently decided case of Mensah v.

Mensah, supra, 145 Conn. App. 644 . . . the court determined that it needed

additional evidence, and called the parties back to court, reopened the

evidence and gave each an opportunity to present further expert testimony

limited to the calculation of the appropriate discount rate and the valuation

of the remainder interest. The [defendant] chose to do so, but the [plaintiff]

declined, relying on the previous testimony.’’

4 Vested remainder interests that have an ascertainable, actual value may

be considered as an interest in fashioning marital dissolution orders. See

Dietter v. Dietter, 54 Conn. App. 481, 502–503, 737 A.2d 926 (‘‘In the present

case, the trial court made no finding as to the actual value of the plaintiff’s

remainder interest in the terminated trust. On remand, if the trial court is

able to ascertain the value of the plaintiff’s interest, it may consider this

interest in fashioning the financial orders. If, on the other hand, the trial

court cannot make a proper valuation of the plaintiff’s interest and in its

discretion it awards alimony, it may fashion the decree to allow for modification of the award when the value of the interest becomes ascertainable.’’),

cert. denied, 252 Conn. 906, 743 A.2d 617 (1999). If a court concludes that

proper valuation of an asset, such as an inheritance, cannot occur until a

later time, after the occurrence of some contingency, it may ‘‘postpone

consideration of the inheritance until such time as its value could be ascertained with reasonable certainty.’’ Bartlett v. Bartlett, 220 Conn. 372, 384,

599 A.2d 14 (1991).

5 This court has stated: ‘‘The trial court may award alimony to a party

even if that party does not seek it and has waived all claims for alimony.’’

Lord v. Lord, 44 Conn. App. 370, 374, 689 A.2d 509, cert. denied, 241 Conn.

913, 696 A.2d 985 (1997), cert. denied, 522 U.S. 1122, 118 S. Ct. 1065, 140

L. Ed. 2d 125 (1998).

6 Assuming Sandolo survived the period of her full life expectancy of 11.1

years, the plaintiff may have been obligated to pay this lump sum alimony

in full, at a rate of $22,500 per year before a full possessory fee simple title

to the property—which would then be worth its full market value—reverted

to her. The court attributed earnings to the plaintiff of approximately $50,000

per year, but her financial affidavit reflected a weekly net income of $737,

or $38,324 annually.

7 Although the plaintiff filed an appeal from both the judgment of dissolution and the denial of her motion to reargue, she did not raise any issue

regarding the denial of her motion to reargue in her preliminary statement

of issues and has not briefed any claims involving it. We therefore deem

that claim abandoned. See Hanover Ins. Co. v. Fireman’s Fund Ins. Co.,

217 Conn. 340, 343 n.4, 586 A.2d 567 (1991).

8 This portion of the articulation failed to resolve inconsistencies in the

court’s original memorandum of decision. As noted previously in this opinion, after discussing the deficiencies of the agreement with respect to enforcing it against the defendant, the court indicated that it need not abrogate

it, but that it would resolve the family dispute by ‘‘alternate means to achieve

an equitable resolution . . . .’’ Later in that same decision, however, the

court declared paragraph 3 of the agreement void as against public policy

and unenforceable against the defendant. As we will discuss further in part

I of this opinion, in treating the plaintiff’s remainder interest as a marital
assetfor purposes of distribution ofthe marital property,the court effectively

declined to enforce paragraph 3 of the agreement, wherein the defendant

promised not to seek to have the plaintiff’s interest in the property treated

as a marital asset in the event of a dissolution of the parties’ marriage.

9 The court also indicated that it did not ‘‘consider the timing of when

the parties occupied 85 Doolittle Road, which according to some testimony

occurred as early as 2005, to be a critical factor in its decision, since it did

not award the [defendant] a share of the real property.’’ Furthermore, the

court stated that its reasoning for awarding the defendant lump sum alimony

equal to 20 percent of the value of the plaintiff’s remainder interest was

clearly set forth in its original memorandum of decision and needed no

further articulation.

10 As previously noted, in its articulation, the court denied that it had

intended to declare the agreement unenforceable.

11 Paragraph 1 of the agreement specifically states that the consideration

for the donative transfer of the remainder interest to the plaintiff was the

defendant’s waiver in paragraph 3. Nowhere in the agreement is there any

indication of what consideration the plaintiff gave to the defendant in

exchange for his waiver.

12 The court, having ultimately treated the agreement as unenforceable as

to the defendant, could have then considered the possible alternative that

the defendant be awarded a share of the remainder interest in the property,

rather than lump sum alimony. The court unnecessarily precluded this alternative from consideration.

13 The plaintiff also claims on appeal that the order of lump sum alimony,

payable in $25,000 annual installments, was excessive in light of her income,

making it more likely that she would need to utilize the remainder interest

asset to satisfy the obligation. We need not address this issue. See footnote

1 of this opinion.

14 Sandolo, as the grantor, also promised to pay any gift taxes due, if any,

in connection with the transaction.

15 ‘‘Even if neither party’s pleading or proof reveals the [public policy]

contravention, the court may ordinarily inquire into it and decide the case

on the basis of it if it finds it just to do so . . . .’’ 2 Restatement (Second),

Contracts, c. 8, topic 1, introductory note, p. 5 (1981).

16 Additionally, among the issues the court may choose to consider on

remand is whether Sandolo should be included as a necessary party. Under

Connecticut law, ‘‘[n]ecessary parties . . . are those [p]ersons having an

interest in the controversy, and who ought to be made parties, in order that

the court may act on that rule which requires it to decide on, and finally

determine the entire controversy, and do complete justice, by adjusting all

the rights involved in it. . . . [B]ut if their interests are separable from

those of the parties before the court, so that the court can proceed to a

decree, and do complete and final justice, without affecting other persons

not before the court, the latter are not indispensable parties.’’ (Internal

quotation marks omitted.) In re Devon B., 264 Conn. 572, 579–80, 825 A.2d

127 (2003). Indispensable parties have been described as persons whose

‘‘interest in the controversy is such that a final decree cannot be made

without either affecting that interest or leaving the controversy in such

condition that its final disposition may be inconsistent with equity and good

conscience. . . . Joinder of indispensable parties is mandated because due

process principles make it essential that [such parties] be given notice and

an opportunity to protect [their] interests by making [them] a party to the

[action].’’ (Citations omitted; internal quotation marks omitted.) Hilton v.

New Haven, 233 Conn. 701, 723, 661 A.2d 973 (1995).

In the present case, the trial court noted that, despite its ruling, Sandolo

might, in the future, seek to ‘‘undo the transfer should the court void the

[defendant’s waiver],’’ an acknowledgment that its effort to avoid the issue

of the agreement’s unenforceability might still lead to ‘‘the protracted, contentious, and acrimonious litigation’’ the court was seeking to avoid. Sandolo

may be entitled to some form ofrestitution should the agreement be declared

unenforceable. In Gaudio v. Gaudio, 23 Conn. App. 287, 293–94, 580 A.2d

1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990), this court approved

the joinder or intervention of third parties as permissible where third parties

had claimed an interest in property involved in the proceedings. ‘‘The policy

supporting this view is the desirability of avoiding multiple suits and of

granting complete relief in a single proceeding.’’ Id., 293.

17 Although we have briefly discussed some of the issues that the court

may choose to consider when it evaluates the agreement at issue on remand,

nothing in our discussion is meant to suggest an outcome with respect to
that inquiry, or to limit the issues that the parties may raise or that the court

may consider with respect to the enforceability of the agreement.

18 We observe that the court also was careful not simply to use the information it had obtained on discount rates from Internet research that it had

conducted on its own, which would have been improper as not having been

part of the trial evidence. See Abington Ltd. Partnership v. Heublein, 246

Conn. 815, 819, 717 A.2d 1232 (1998) (independent investigation of facts of

case not shown to be improper under Code of Judicial Conduct, canon 3

[a] [4] [now rule 2.9 (a)] if information gleaned did not influence court’s

decision).

19 The court did not insert any evidence which was outside the record. It

questioned and rejected Liguori’s discount rate, the deficiency of which

was evident to the court during the defendant’s cross-examination, and

ultimately, it accepted one of the discount rates testified to by Murray. It

should not have come as a surprise to the plaintiff that the discount rate

proffered by her expert was suspect, yet by recalling Liguori as a witness,

the plaintiff chose to persist in maintaining, afterthe evidence was reopened,

that Liguori’s discount rate was appropriate because his rate resulted in the

lowest valuation of her interest. The court, however, did not find Liguori’s

defense of his 10 percent rate persuasive.

20 We observe that none of the expert witnesses considered, at the time

oftheir valuations,the factthat there was approximately a $100,000 mortgage

on the property.

21 We note that Liguori also did not attempt to calculate the value of

Sandolo’s life estate on the basis of its market rental value over her life

expectancy.

22 The otherrate that Murray used concerned the ten year historical performance for Real Estate Investment Trusts (REITs), which are securities that

invest in income producing property. This rate was 4.72 percent. Although

Murray conceded that there was an obvious and stark qualitative difference

between the plaintiff’s remainder interest and an investment in a REIT, he

nevertheless used the rate applicable to REITs. Murray indicated that unlike

a REIT, a remainder interest in residential real estate such as the plaintiff’s

has no market; a remainder interest cannot be readily purchased or sold.

23 In fact, the IRS promulgates a table on its website that specifically

applies to the valuation of life estates and remainder interests for gift tax

purposes. Pursuant to the Internal Revenue Code, 26 U.S.C. § 7520 (2012),

the interest rate used to make this value calculation for a particular month

is the rate that is 120 percent of the applicable federal midterm rate (compounded annually) for the month in which the valuation date falls. That

rate is then rounded to the nearest two-tenths of 1 percent. The IRS has a

publication, ‘‘Actuarial Valuations,’’ describing the methodology, which can

be accessed online. See Internal Revenue Service, ‘‘Actuarial Valuations–

Version 3A,’’ (last modified May, 2009), pp. 2–11, available at www.irs.gov/

pub/irs-pdf/p1457.pdf (last visited March, 16, 2016) (copy contained in the

file of this case in the Appellate Court clerk’s office). The methodology is

also used in bankruptcy proceedings to calculate the value of a remainder

interest in real property. See P. Scribner, ‘‘How to Calculate the Value of a

Remainder Interest in Bankruptcy,’’ (March 8, 2011), available at http://

www.scribnerbankruptcyblog.com (see archives for March, 2011) (last visited March, 16, 2016) (copy contained in the file of this case in the Appellate

Court clerk’s office).

24 Liguori and Murray, therefore, did not dispute the limited marketability

of life estate and remainder interests. One commentator has observed: ‘‘If

one buys a life estate from the fee owner (or is given it, as is more often

the case), the value one pays (or realizes, if it’s a gift) is more or less the

value of the use of the property for the expected life of the buyer (recipient).

The value left to the seller (grantor), whose title is now described as a

reversion, is the rest—or, to put it another way, the value of the reversion

is the expected value of the fee simple title at the expected time of death

of the life tenant, revised to present value. These values are, of course,

speculative. They could change due to those vicissitudes of the market

and the actions of the life tenant, but they also could change substantially

depending on the actual length of the life of the life tenant. These multiple

uncertainties affecting the value of the life estate and of the reversion are

the main reason why very few people actually purchase a life estate in real

property and those who do will typically pay much less than the actuarial

tables and use value of the property would suggest the property is worth.

‘‘When a life tenant dies, the remainderman’s interest in the property

increases in value. One could think of the increase in value as having been
incremental—as the life tenant gets closer to the day of her death, the value

of the remainder increases day to day. One could also think of the increase

as sudden—the remainderman’s interest is difficult to sell and would only

sell at a significant discount before the death of the life tenant. Once the

life tenant dies, the remainderman owns the present possessory fee simple

title to the property, which is then worth the full market value.’’ (Footnotes

omitted.) K. Salzberg, ‘‘Zombie Life Estates, Ghost Value Transfers, and

Phantom Takings: Confusions of Title and Value in Property Law Legislation,’’ 22 Quinnipiac Prob. L.J. 363, 375–76 (2009).

25 A review of relevant case law discussing the valuation of life estates

and remainder interests indicates that there is no single accepted way of

valuing these limited interests in property. See 51 Am. Jur. 2d, Life Tenants

and Remaindermen § 31 (1970) (‘‘[i]t has been stated that in some states

there is no fixed rule for estimating the value of a life estate, and that each

case must be determined upon its own facts with the end in view of arriving

at an equitable and just valuation’’). We have found no Connecticut appellate

authority that has expressly sanctioned the use of any particular method

for valuation of limited property interests such as life estate and remainder

interests. Such interests are frequently valued by consulting tables promulgated for taxation purposes. See, e.g., General Statutes § 12-353 (‘‘The value

of each future, contingent or limited estate, income interest or annuity for

life or lives in being shall, so far as possible, be determined by the rule,

method and standard of mortality and of value set forth in the Commissioners’ 1980 Standard Ordinary Mortality Table with interest at six per cent

per annum. The value of the interest remaining after such limited estate

shall be determined by deducting the computed value of the limited estate

from the value of the entire property in which such interest exists.’’); see

also Gregg v. Gregg, 510 A.2d 474, 481 (Del. 1986) (possible to place present

value on remainder interest in property subject to life estate pursuant to

table referenced in state department of finance, division of revenue tax

ruling); In re Estate of Hjersted, 285 Kan. 559, 585, 175 P.3d 810 (2008)

(value of life estate interest owner’s share of proceeds from sale of property

calculated using ‘‘7520 rate’’ for date of sale pursuant to standardized valuation tables promulgated pursuant to 26 U.S.C. § 7520 [2000]). Actuarial tables

also are used by social services departments to assess an individual’s ability

to pay for long-term medical care. See, e.g., State v. Goggin, 208 Conn.

606, 618, 546 A.2d 250 (1988) (alleged value of life estate, when conveyed,

determined according to specified Department of Income Maintenance regulations); Indiana Family & Social Services Administration v. Meyer, 927

N.E.2d 367, 368–69 (Ind. 2010) (remainder interest in farm valued pursuant

to state family and social services administration guidelines); Hansen v.

Hansen, 774 N.W.2d 462, 464 (S.D. 2009) (couple’s remainder interest in

life estate calculated by using actuarial table used by state department of

social services).

26 The court, in fact, expressed at one point that it was baffled by the fact

that the property was estimated to rise in value at the rate of 2 percent a

year, while it was also being discounted to present value using a 10 percent

rate. Specifically, the court stated: ‘‘How is it that you assume a growth rate

of 2 percent going forward to arrive at the day, at a value where, you know,

[Sandolo] goes to her reward? And then, take the present value using a 10

percent [discount rate]; I mean, why isn’t, you know, why is it growing 2

percent this way and declining [10] percent the other way? It just doesn’t—

I’m puzzled by that.’’

27 We note that none of the experts who testified indicated that he had

read Keating’s book, from which the article was excerpted.