*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
LAURA GRABE v. JUSTIN HOKIN

(SC 20432)

Robinson, C. J., and McDonald, D’Auria,

Kahn, Ecker and Keller, Js.

Syllabus

The plaintiff sought to dissolve her marriage to the defendant and to enforce

a nuptial agreement that the parties had executed shorty before their marriage. The prenuptial agreement provided that, in the event of dissolution, the parties agreed to waive any claim to each other’s separate

property or to support from the other. The agreement also provided

that a party who unsuccessfully challenged its enforceability would pay

the attorney’s fees of the other party and contained a severability clause

providing that, if any provision or provisions in the agreement were

found to be unenforceable, the remainder of the agreement would continue in full force and effect. The defendant filed a cross complaint,

claiming that enforcement of the agreement would be unconscionable

in light of certain, uncontemplated events during the marriage, including

the birth of the parties’ three children, the destruction of the defendant’s

house by fire, the destruction of a yacht club, in which the defendant

had an indirect ownership interest, due to a natural disaster, and the

failure of a business from which the defendant derived his primary

source of income. The trial court found that, although these events were

not contemplated, they did not render enforcement of the agreement

unconscionable. The court found, however, that enforcement of the

attorney’s fees provision would be unconscionable insofar as it would

financially cripple the defendant. The trial court rendered judgment

dissolving the parties’ marriage, striking the attorney’s fees provision

from the prenuptial agreement and concluding that the remainder of

the agreement was enforceable. The defendant appealed, claiming that

the trial court incorrectly determined that the occurrence of the uncontemplated events during the parties’ marriage did not render enforcement of the agreement unconscionable at the time of dissolution. Held

that the trial court correctly determined that enforcement of the parties’

prenuptial agreement was not unconscionable in light of all of the relevant facts and circumstances: the fact that events arose during the

marriage that were beyond the parties’ initial contemplation did not

establish that enforcement of the prenuptial agreement would be unconscionable, and, although the defendant claimed that the children were

entitled to continue the lifestyle to which they were accustomed before

the dissolution, the children were being supported by the plaintiff at

the same standard of living they enjoyed before the dissolution, the

defendant conceded that, as a noncustodial parent, he was not entitled

to child support, and there was nothing in this state’s statutes or case

law to suggest that public policy required that a noncustodial parent

receive postdissolution support for the sole purpose of ensuring that

he or she has the ability to provide for the children of the marriage in

the same manner as the custodial parent, as a regulation (§ 46b-215a5c (b) (6) (B)) setting forth the criteria for deviating from this state’s

child support guidelines expressly contemplates that, after dissolution,

parents may have an extraordinary disparity in income; moreover, the

defendant had significant assets at the time of the dissolution, nothing

in the record supported the conclusion that he was incapable of earning

an income, it was not unreasonable to expect the defendant to obtain

employment to replace the income that he lost from the failed business,

and there was no evidence that the defendant gave up any income

earning opportunities as a result of his marriage or the births of the

children, or that he made significant contributions to family life, for

which it would be unfair not to compensate him; furthermore, it was

not inconsistent for the trial court to conclude that it would be unconscionable to enforce the attorney’s fees provision in the agreement on

the ground that enforcement of that provision would financially cripple

the defendant while also finding the remainder of the agreement enforceable, as the agreement’s severability clause contemplated the possibility
of enforcement of certain provisions in the agreement but not others.

Argued May 3—officially released November 17, 2021*

Procedural History

Action for the dissolution of a marriage, and for other

relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the defendant filed a

cross complaint; thereafter, the case was referred to

the Regional Family Trial Docket at Middletown and

tried to the court, Diana, J.; judgment dissolving the

marriage and granting certain other relief, from which

the defendant appealed. Affirmed.

Scott T. Garosshen, with whom were Kenneth J.

Bartschi and, on the brief, Michael T. Meehan, for the

appellant (defendant).

Charles D. Ray, with whom were Angela M. Healey,

David W. Griffin and, on the brief, Dyan M. Kozaczka,

for the appellee (plaintiff).
Opinion

KAHN, J. The issue before us in this appeal is whether

the trial court correctly determined that the enforcement of a prenuptial agreement executed by the plaintiff, Laura Grabe, and the defendant, Justin Hokin, was

not unconscionable at the time of the dissolution of

their marriage. Shortly before the parties’ marriage in

2010, they executed a prenuptial agreement in which

each party agreed, in the event of a dissolution action,

to waive any claim to the other’s separate property, as

defined in the agreement, or to any form of support

from the other, including alimony. The agreement also

provided that a party who unsuccessfully challenged

the enforceability of the agreement would pay the attorney’s fees of the other party. In 2016, the plaintiff

brought this action seeking dissolution of the marriage

and enforcement of the prenuptial agreement. The

defendant filed a cross complaint in which he claimed,

inter alia, that the agreement was unenforceable

because it was unconscionable at the time of the dissolution under General Statutes § 46b-36g (a) (2).1 After

a trial to the court, the court concluded that, with the

exception of the attorney’s fees provision, enforcement

of the terms of the prenuptial agreement that the parties

entered into was not unconscionable, even in light of

certain events that had occurred during the marriage.

Accordingly, the trial court rendered judgment dissolving the marriage and enforcing the terms of the prenuptial agreement, with the exception of the provision

requiring the party who unsuccessfully challenged the

enforceability of the agreement to pay the attorney’s

fees of the other party. On appeal,2

the defendant contends that the trial court incorrectly determined that

the occurrence of the unforeseen events found by the

trial court did not render the enforcement of the entire

agreement unconscionable at the time of the dissolution. We affirm the judgment of the trial court.

The record reveals the following facts that were

found by the trial court or that are undisputed. Shortly

before the parties’ marriage on October 2, 2010, they

entered into a prenuptial agreement. The agreement

provided that it would be ‘‘governed and construed in

accordance with the Connecticut Premarital Agreement

Act, [General Statutes] § 46b-36a et seq. . . .’’ Under

the agreement, each party waived any claim to the property of the other during the marriage. In the event of

a marital dissolution, each party agreed to waive ‘‘all

claims and rights to any equitable distribution of [s]eparate [p]roperty [of the other party, as defined in the

agreement],’’ and to ‘‘any claim for temporary or permanent maintenance, support, alimony, [attorney’s] fees

(including [pendente] lite [attorney’s] fees) or any similar claim . . . .’’ In addition, each party agreed that, if

either party ‘‘unsuccessfully seeks to invalidate all or

any portion of [the] [a]greement or seeks to recover
alimony (other than pendente lite [attorney’s] fees) or

property in a manner which deviates from the terms of

[the] [a]greement, then the prevailing party shall be

entitled to recover all reasonable and necessary [attorney’s] fees and other costs incurred in successfully

defending his or her rights under [the] [a]greement.’’

The agreement also contained a severability provision

stating that, ‘‘[i]n case any provision of [the] [a]greement should be held to be invalid, such invalidity shall

not affect, in any way, any of the other provisions

herein, all of which shall continue in full force and

effect, in any country, state or jurisdiction in which

such provisions are legal and valid.’’ In addition, the

agreement provided that ‘‘[n]o change in circumstances

of the parties shall render [the] [a]greement unconscionable if enforcement hereof is sought at any time in

the future.’’

At the time that the parties executed the prenuptial

agreement, the plaintiff’s annual income was $1,312,225,

and her net worth was $12,319,380. The defendant’s

estate had a fair market value of $5,150,295,3 and he

disclosed income of $97,719.06 over the previous six

months. The primary sources of the defendant’s income

were a director’s fee of approximately $60,000 per year

from an entity known as Intermountain Industries and

guaranteed payments ranging from $80,000 to $100,00

per year from an entity known as 4H, LLC Family Partnership (4H, LLC).4 The defendant received no other

income from employment.

Before their marriage, both the plaintiff and the

defendant would frequently stay out all night socializing

and drinking with friends. The plaintiff changed her

behavior when she became pregnant shortly after the

marriage, but the defendant did not. After the parties’

oldest daughter was born in late 2011, the defendant

continued to neglect his responsibilities to his family.

For example, ten months after his daughter’s birth, the

defendant left the plaintiff at home alone with her while

Hurricane Sandy struck their neighborhood, and the

plaintiff was forced to seek shelter at her parents’ home.

After the parties’ second daughter was born in 2013,

the defendant’s family planned an intervention for him,

as his drinking was out of control and he was being completely unproductive. The intervention never occurred,

and the defendant continued to stay out all night, sleep

most of the day and ignore the needs of his wife and

children.

In August, 2014, the plaintiff contacted a divorce lawyer. Two weeks later, the house in Norwalk where the

parties resided, which the defendant owned, was completely destroyed by a fire. The parties then leased

another residence in Norwalk. In November, 2014, the

plaintiff filed an action for the dissolution of the marriage, but she later withdrew it. In 2015, the parties’

third daughter was born.
During this period, the plaintiff started building a

house in the Rowayton neighborhood of Norwalk. In

March, 2016, the plaintiff separated from the defendant

and moved into the Rowayton house with their three

young daughters. Several weeks later, she filed this

action seeking the dissolution of the marriage and

enforcement of the prenuptial agreement. In February,

2017, the defendant filed an amended answer and cross

complaint, alleging, inter alia, that the prenuptial agreement was unenforceable under § 46b-36g (a) (2)

because it was unconscionable when enforcement was

sought.5

Thereafter, in September, 2017, a yacht club in the

Caribbean known as the Bitter End Yacht Club (Yacht

Club), which was owned by the defendant’s family and

in which the defendant had an indirect, fractional ownership interest, was destroyed by Hurricane Irma. Also

in 2017, Intermountain Industries failed due to a downturn in the price of crude oil. As a result, it no longer

paid the defendant a director’s fee, and its guaranteed

payments to 4H, LLC were discontinued.

Evidence presented at trial showed that, since the

execution of the prenuptial agreement, the defendant’s

assets had decreased in value from $5,150,295 to $2.1

million. A note on the defendant’s financial affidavit

dated February 11, 2019, which was introduced as an

exhibit at trial, indicated that $1,845,000 of these assets

were held in the Justin Hokin Grantor Trust, representing the trust’s ownership interests in other assets, ‘‘primarily [4H, LLC],’’ and that ‘‘[t]he most significant asset

in [4H, LLC], is [the Yacht Club], which was destroyed

by Hurricane Irma in the summer of 2017.’’ The note

also indicated that the trust was ‘‘wholly illiquid’’ and

that its value was not ‘‘accessible’’ to the defendant.

The defendant had liabilities of $1,351,262, more than

$1 million of which was debt owed to his father and to

4H, LLC, for ‘‘legal fees . . . .’’ The affidavit showed

that the defendant had no significant income.6

The defendant contended in his posttrial brief to the

trial court that the births of the parties’ three children,

the destruction of his house by fire, the destruction of

the Yacht Club by Hurricane Irma and the failure of

Intermountain Industries were not contemplated when

the prenuptial agreement was signed and that enforcement of the agreement would be unconscionable in light

of these unforeseen events. Accordingly, the defendant

requested that the trial court not enforce the agreement

and, instead, order a property division ‘‘[that] . . .

would permit the defendant to purchase a home in close

proximity [to the plaintiff’s home] to provide the minor

children a comparable quality of life between both parent households.’’

The plaintiff contended before the trial court that, to

the contrary, the events cited by the defendant were
not beyond the contemplation of the parties when they

executed the prenuptial agreement. She also referred to

evidence presented at trial that would support findings

that, after the defendant received insurance proceeds

for the destruction of his house, paid off two mortgages

on the house and sold the land, he retained net proceeds

of $775,587.73, as compared with equity of $20,309.58

at the time that the prenuptial agreement was executed;

the value of the Yacht Club property on December

31,2017, was $14,900,000, $3,000,000 more than its value

on the date that the prenuptial agreement was executed;

and the defendant’s family was responsible for the failure of Intermountain Industries. Accordingly, the plaintiff argued that, even if the events were not contemplated, it would not be unconscionable to enforce the

prenuptial agreement, in part because it would be unfair

to require the plaintiff bear the burden of the defendant’s neglectful and unproductive behavior.

In its memorandum of decision, the trial court found

that, at the time of trial, the plaintiff was forty-one years

old and in good health. She had a bachelor’s degree in

journalism and was two credits short of receiving her

master’s degree in science from New York University.

She had a net weekly income of $34,284,7 and the fair

market value of her assets was $27.4 million. The defendant was forty-four years old and in good health. He had

a bachelor’s degree in geography from the University

of Montana. He had no significant income8 and his

assets had a fair market value of $2.1 million.9

The trial court determined that the defendant was at

fault for the breakdown of the marriage. The court

observed that, after the parties’ three children were

born, ‘‘the defendant continued to live a life full of

drinking and partying. Instead of trying to provide for

the plaintiff and their young children, the defendant

remained stagnant and engulfed in a selfish mentality

until he lost his footing in his business and his marriage.’’ The marriage ‘‘suffered as the defendant slept

most of the day, stayed out all night, and did not make

the plaintiff or the children even a remote priority in

his life.’’

The trial court further found that, at the time that

they entered into the prenuptial agreement, the parties

had not contemplated that they would have three children, the defendant’s house would be destroyed by fire,

the Yacht Club would be destroyed by a hurricane and

that Intermountain Industries would fail, depriving the

defendant of his primary source of income.10 Although

the court concluded that these events were not specifically contemplated by the parties when they entered

into the agreement, it determined that they were not

events that would render enforcement of the terms of

the agreement unconscionable.

When it came to the enforcement of the attorney’s

fees provision, however, the trial court concluded that,
under the circumstances existing at the time of trial,

enforcement of that provision would be unconscionable. The court observed that the plaintiff ‘‘has great

financial wealth and [was] not incapable of paying for

her own attorney’s fees.’’ In addition, the court found

it ‘‘unlikely that the parties considered paying millions

of dollars in attorney’s fees to the other party in the

event of a marital dissolution’’ and that the enforcement

of the attorney’s fees provision ‘‘would financially cripple the defendant’s remaining assets . . . .’’11 In light

of these findings, the court concluded that, ‘‘while the

totality of the agreement is not unconscionable, [the

provision requiring a party who unsuccessfully challenges the prenuptial agreement to pay the attorney’s

fees of the other party] is unconscionable and should

be stricken from the antenuptial agreement. The

remainder of the parties’ antenuptial agreement shall be

enforced . . . .’’ Accordingly, the trial court rendered

judgment dissolving the parties’ marriage, striking the

attorney’s fees provision from the prenuptial agreement

and, consistent with the severability provision of the

agreement, concluding that the remainder of the agreement was enforceable. The court also incorporated the

final parenting plan into the judgment, pursuant to

which the children were to reside primarily with the

plaintiff but would spend time with defendant pursuant

to a regular visitation schedule. In addition, the parties

stipulated that the defendant would pay weekly child

support in the amount of $57, in accordance with the

child support guidelines. Thus, although the parties had

joint legal custody of the children, the plaintiff was to

have primary physical custody.

This appeal followed.12 On appeal, the defendant contends that the trial court incorrectly determined that it

would not be unconscionable to enforce the prenuptial

agreement when it found that the parties did not initially

contemplate that the defendant would be helping to

raise three young children at a time when he had no

income and greatly diminished assets.13 The plaintiff

contends that, even if the parties did not initially contemplate these events, the trial court correctly determined that they were not so far beyond their contemplation as to render the enforcement of the agreement

unconscionable.14 We agree with the plaintiff.

We begin our analysis with the standard of review.

Pursuant to § 46b-36g (a), ‘‘[a] premarital agreement

. . . shall not be enforceable if the party against whom

enforcement is sought proves that . . . (2) [t]he agreement was unconscionable when it was executed or

when enforcement is sought . . . .’’ Whether the prenuptial agreement is enforceable is a mixed question

of fact and law. See Friezo v. Friezo, 281 Conn. 166,

180–81, 914 A.2d 533 (2007), overruled in part on other

grounds by Bedrick v. Bedrick, 300 Conn. 691, 17 A.3d

17 (2011). Although the underlying historical facts

found by the trial court may not be disturbed unless
they are clearly erroneous; see Kovalsick v. Kovalsick,

125 Conn. App. 265, 270–71, 7 A.3d 924 (2010); whether

a prenuptial agreement is unconscionable in light of

those facts, if not clearly erroneous, is a question of

law subject to plenary review. See Crews v. Crews,

295 Conn. 153, 163–64, 989 A.2d 1060 (2010); see also

General Statutes § 46b-36g (c) (‘‘[a]n issue of unconscionability of a premarital agreement shall be decided by

the court as a matter of law’’).

‘‘Unconscionable is a word that defies lawyer-like

definition. . . . The classic definition of an unconscionable contract is one which no [individual] in his senses,

not under delusion, would make, on the one hand, and

which no fair and honest [individual] would accept, on

the other.’’ (Internal quotation marks omitted.) Beyor

v. Beyor, 158 Conn. App. 752, 758, 121 A.3d 734, cert.

denied, 319 Conn. 933, 125 A.3d 206 (2015).

We have previously recognized that § 46b-36g was

intended to endorse, clarify and codify the standards

set forth in this court’s decision in McHugh v. McHugh,

181 Conn. 482, 436 A.2d 8 (1980). See, e.g., Friezo v.

Friezo, supra, 281 Conn. 185–86 n.23. In McHugh, this

court held that ‘‘an antenuptial agreement will not be

enforced where the circumstances of the parties at the

time of the dissolution are so far beyond the contemplation of the parties at the time the agreement was made

as to make enforcement of the agreement work an

injustice. . . . Thus, where a marriage is dissolved not

because it has broken down irretrievably, but because

of the fault of one of the parties, an antenuptial waiver

of rights executed by the innocent party may not be

enforceable, depending [on] the circumstances of the

particular case and the language of the agreement. . . .

Likewise, where the economic status of [the] parties

has changed dramatically between the date of the agreement and the dissolution, literal enforcement of the

agreement may work injustice.’’ (Citations omitted.)

McHugh v. McHugh, supra, 489. Other unforeseen

changes that may, depending on the circumstances,

render a prenuptial agreement unenforceable include

the birth of a child, loss of employment or a move to

another state. Bedrick v. Bedrick, supra, 300 Conn. 706.

‘‘Absent such unusual circumstances, however, antenuptial agreements freely and fairly entered into will

be honored and enforced by the courts as written.’’

McHugh v. McHugh, supra, 181 Conn. 489. ‘‘Unfairness

or inequality alone does not render a [prenuptial] agreement unconscionable;15 spouses may agree on an

unequal distribution of assets at dissolution. [T]he mere

fact that hindsight may indicate the provisions of the

agreement were improvident does not render the agreement unconscionable. . . . Instead, the question of

whether enforcement of an agreement would be unconscionable is analogous to determining whether enforcement of an agreement would work an injustice. . . .
Marriage, by its very nature, is subject to unforeseeable

developments, and no agreement can possibly anticipate all future events.’’ (Citations omitted; footnote

added; internal quotation marks omitted.) Bedrick v.

Bedrick, supra, 300 Conn. 705–706. Indeed, if every

event that the parties did not anticipate could provide

a basis for invalidating a prenuptial agreement, no such

agreement would be enforceable. Thus, ‘‘the party seeking to challenge the enforceability of the antenuptial

contract bears a heavy burden.’’ Crews v. Crews, supra,

295 Conn. 169; see id., 170 (‘‘proving uncontemplated,

dramatically changed circumstances requires a significant showing’’); see also id. (‘‘McHugh requires an

extraordinary change in economic status and . . . the

threshold for finding such a dramatic change is high’’

(internal quotation marks omitted)).

In the present case, we assume without deciding that

the trial court correctly found that the parties did not

contemplate the births of their three children, the

destruction of the defendant’s house by fire, the destruction of the Yacht Club by a hurricane or the failure of

Intermountain Industries when they entered into the

prenuptial agreement.16 We further assume that the

resulting diminishment in the value of the defendant’s

assets and his loss of income from Intermountain Industries also were not contemplated. As we explained,

however, it is clear under our case law that, standing

alone, the fact that existing circumstances were beyond

the parties’ initial contemplation does not establish that

enforcement of a prenuptial agreement would be unconscionable. Rather, we must determine whether these

circumstances were ‘‘so far beyond the contemplation

of the parties at the time the agreement was made

as to make enforcement of the agreement work an

injustice.’’ McHugh v. McHugh, supra, 181 Conn. 489;

see also Crews v. Crews, supra, 295 Conn. 168 (if court

determines that circumstances at time of dissolution

were beyond parties’ initial contemplation, court must

then determine ‘‘whether enforcement would cause an

injustice’’). In making this determination, we must consider all of the relevant facts and circumstances. See,

e.g., Crews v. Crews, supra, 163.

We first address the defendant’s contention that the

trial court improperly failed to recognize that enforcement of the prenuptial agreement would be unconscionable in light of the uncontemplated births of the parties’ children and his loss of assets and income because

the ‘‘children are entitled to continue the lifestyle to

which [they were] accustomed and the standard of living [they] enjoyed before the divorce . . . .’’17 (Internal

quotation marks omitted.) Hornung v. Hornung, 323

Conn. 144, 162, 146 A.3d 912 (2016). We are not persuaded. There is no question in the present case that

the children are being supported by the plaintiff at the

same standard of living that they enjoyed before the

dissolution. As far as the record reveals, they continue
to live in the same house, to sleep there most nights,

to attend the same schools, to receive the same level

of health care and to enjoy the same food, clothing,

vacations, entertainment and the like as they did before

the marital dissolution. Thus, it is difficult to perceive

the relevance of Hornung in the present case. Contrary

to the defendant’s suggestion, the fact that a child

spends a limited amount of time with a noncustodial

parent who has a somewhat lower standard of living

than the child does not, ipso facto, mean that the child’s

standard of living is reduced. See Maturo v. Maturo,

296 Conn. 80, 108, 995 A.2d 1 (2010). Moreover, the

defendant concedes that, as a noncustodial parent, he

would not be entitled to a child support award under

any circumstances. As we stated in Tomlinson v. Tomlinson, 305 Conn. 539, 46 A.3d 112 (2012), ‘‘the legislature viewed the provision of custody as the premise

underlying the receipt of child support payments; the

legislature did not envision that the custodian would

be required to pay child support to a person who does

not have custody, as well as (in cases in which the

obligor obtains custody) expend resources to provide

directly for the care and welfare of the child. In fact,

under the Child Support and Arrearage Guidelines . . .

child support award is defined as the entire payment

obligation of the noncustodial parent . . . .’’18 (Emphasis in original; internal quotation marks omitted.) Id.,

554.

The defendant also appears to claim that, for the sake

of the children, he is entitled to enjoy his predissolution

standard of living because an ‘‘extraordinary disparity

in parental income may hinder [the] lower income [noncustodial] parent’s ability to foster a relationship with

the child . . . .’’ (Internal quotation marks omitted.)

See Maturo v. Maturo, supra, 296 Conn. 101. Again, we

are not persuaded. This court recognized in Maturo

that, when there is an ‘‘extraordinary disparity’’ in

parental income, the court may depart from the child

support guidelines when the custodial parent has the

higher income and deviation from the presumptive support amount ‘‘would enhance the lower income [noncustodial] parent’s ability to foster a relationship with

the child . . . .’’ (Internal quotation marks omitted.)

Id.; see also Regs., Conn. State Agencies § 46b-215a5c (b) (6) (B) (when there is extraordinary disparity

between parents’ net incomes, court may deviate from

presumptive support amounts if deviation would ‘‘enhance

the lower income parent’s ability to foster a relationship

with the child’’ and ‘‘sufficient funds remain for the

parent receiving support to meet the basic needs of the

child after deviation’’). In other words, Maturo recognized that a lower income noncustodial parent may be

permitted to pay less than the presumptive child support amount to a higher income custodial parent if there

is an extraordinary disparity in their incomes and the

other conditions of the regulation are met—relief that
the defendant in the present case did not seek. Thus,

although § 46b-215a-5c (b) (6) (B) admittedly was

intended to address the problems that may arise when

divorced parents have disparate incomes and standards

of living, the remedy that it provides is quite limited.

Maturo does not suggest that a lower income noncustodial parent has any right under the regulation to receive

child support from a higher income custodial parent for

the purpose of enhancing the ability of the noncustodial

parent to ‘‘foster a relationship’’ with a child who shares

the custodial parent’s higher standard of living. Cf.

Zheng v. Xia, 204 Conn. App. 302, 312, 253 A.3d 69

(2021) (under Maturo, trial court improperly ordered

parent with higher income to pay supplemental, lump

sum child support to custodial parent with no income

other than child support on basis of ‘‘significant disparity’’ in parties’ income). In Maturo, the court recognized

that, ‘‘[w]hen a parent has an ability to pay a large

amount of support, the determination of a child’s needs

can be generous, but all any parent should be required

to pay, regardless of his or her ability, is a fair share

of the amount actually necessary to maintain the child

in a reasonable standard of living. Court-ordered support that is more than reasonably needed for the child

becomes, in fact, [tax free] alimony.’’ Maturo v. Maturo,

supra, 105–106. (Emphasis altered; internal quotation

marks omitted.) Indeed, as we have already explained,

a noncustodial parent is not entitled to a child support

award under any circumstances. See Tomlinson v.

Tomlinson, supra, 305 Conn. 554.

The defendant contends that the fact that a noncustodial parent cannot receive child support supports his

argument that the prenuptial agreement is unconscionable because it demonstrates that, if the agreement is

enforced, the trial court will be ‘‘without the tools to

account properly for the best interests of [the] children,

putting both the noncustodial parent and them in an

untenable place.’’ (Emphasis added.) Thus, the defendant appears to suggest that, in the absence of the

prenuptial agreement, the trial court would be authorized to award alimony or a property distribution to him

for the purpose of ensuring that he can provide for the

children in the same manner as the plaintiff. This court

has held, however, that it is improper to disguise a child

support award as alimony, and that alimony should be

used only to address the needs of the recipient parent.19

See Loughlin v. Loughlin, 280 Conn. 632, 655, 910 A.2d

963 (2006). Moreover, we observed in Tomlinson v.

Tomlinson, supra, 305 Conn. 555, that ‘‘permitting the

diversion of funds away from the [custodial] parent

[who is] providing for the care and well-being of minor

children . . . would contravene the purpose of child

support.’’ Although we were referring in Tomlinson to

a situation in which a former noncustodial parent takes

custody of the children and becomes responsible for

supporting them but continues to pay child support to
the former custodial parent; see id., 541–42; the same

principle would hold true whenever a custodial parent

is required to pay any form of support to a noncustodial

parent based on the fiction that the payment is for the

support of the children.

20

In short, we see nothing in our statutes or case law

to suggest that it is the public policy of this state that

a noncustodial parent is entitled to receive any form of

postdissolution support for the sole purpose of ensuring

that he or she has the ability to provide for the children

of the marriage in the same manner as the custodial

parent.21 Indeed, § 46b-215a-5c (b) (6) (B) of the regulations expressly contemplates that, after a marital dissolution, the parents of a child may have an ‘‘[e]xtraordinary disparity’’ in income. It follows that the regulation

contemplates that a child may well have a higher standard of living than his or her noncustodial parent while

continuing to have a relationship with that parent. We

conclude, therefore, that Maturo does not support the

proposition that it would be unfair, much less unconscionable, to enforce a prenuptial agreement merely

because there is an extraordinary disparity between the

incomes or standards of living of the custodial parent

and the children, on the one hand, and the noncustodial

parent, on the other hand.22

The defendant also relies on this court’s decision in

Bedrick v. Bedrick, supra, 300 Conn. 691, to support

his contention that enforcement of the prenuptial agreement would be unconscionable. In Bedrick, the parties

executed a postnuptial agreement in 1977, providing

that, in the event of a marital dissolution, neither party

would receive alimony.23 Id., 693–94. Instead, the plaintiff wife would receive a cash settlement in an amount

to be periodically reviewed. Id., 694. A May 18, 1989

addendum to the agreement provided for a cash settlement in the amount of $75,000. Id. The plaintiff waived

her interest in the defendant’s car wash business, and

the defendant agreed that the plaintiff would not be

held liable for his personal and business loans. Id. In the

early 1990s, the defendant’s car wash business became

successful. Id., 707. In 1991, when the parties were fortyone years old, their child was born. Id. By the time of

trial, the plaintiff had worked for that business for

thirty-five years, providing administrative and bookkeeping support. Id. Since 2001, when the business

began to deteriorate, the plaintiff had managed all business operations except for maintenance. Id. In 2004,

the plaintiff worked outside of the business to provide

the family with additional income. Id. The trial court

concluded that ‘‘[t]he economic circumstances of the

parties had changed dramatically since the execution of

the agreement and that enforcement of the postnuptial

agreement would have worked injustice.’’ (Internal quotation marks omitted.) Id. Accordingly, it concluded

that the agreement was unenforceable. Id. This court

concluded that ‘‘[t]he facts and circumstances . . .
clearly support the findings of the trial court that, as a

matter of law, enforcement of the agreement would be

unconscionable.’’ Id., 708.

In the present case, the defendant contends that

Bedrick stands for the proposition that a prenuptial

agreement is unenforceable whenever (1) a child was

unexpectedly born during the marriage, and (2) a

spouse has undergone dramatic economic changes. We

conclude that Bedrick is easily distinguishable from the

present case. First, in Bedrick, the plaintiff gave birth

to the parties’ child after sixteen years of marriage when

both parties were forty-one years old. See Bedrick v.

Bedrick, Docket No. FA-07-4007533, 2009 WL 1335100,

*4 (Conn. Super. April 24, 2009). By contrast, in the

present case, the parties’ three children were all born

within five years of the marriage, when both parties

were in their thirties. Although the children may not

have been ‘‘contemplated’’ when the parties executed

the prenuptial agreement, it is reasonable to conclude

that their births were less of a bolt from the blue than

the birth of the parties’ child in Bedrick. Indeed, when

asked at trial whether he and the plaintiff ‘‘plan[ned]

on having children during the course of the marriage,’’

the defendant replied, ‘‘[y]eah.’’ When asked what his

plan was, he replied, ‘‘[t]o be fruitful and multiply.’’24

Second, the plaintiff in Bedrick worked for the defendant’s car wash business for thirty-five years, including

the entire thirty-two year duration of the marriage, often

seven days per week. Bedrick v. Bedrick, supra, 300

Conn. 707; Bedrick v. Bedrick, supra, 2009 WL 1335100,

*3. The business floundered after the dissolution action

was instituted and the plaintiff ceased working for it.

Bedrick v. Bedrick, supra, 300 Conn. 707. In the present

case, there is no evidence that the defendant contributed to the success of any business or enterprise of

the plaintiff. Third, in Bedrick, the plaintiff secured

employment ‘‘outside of the [car wash] business in

order to provide the family with additional income.’’

(Emphasis added.) Id. Although the defendant in the

present case may have contributed to the support of

his children during the marriage, there is no evidence

that he provided financial support to the plaintiff.25

Finally, the plaintiff in Bedrick was fifty-seven years

old at the time of the marital dissolution, did not have

a college degree and had been diagnosed with diabetes,

which was controlled by medication. Bedrick v. Bedrick,

supra, 2009 WL 1335100, *3–4. In the present case, the

defendant was forty-four years old at the time of dissolution, had a college degree and was in good health.

We further note that the defendant had significant

assets at the time of the marital dissolution and is adequately provided for, at least in the near term. Although

we recognize that his assets may not be sufficient to

meet his needs for his entire lifetime, nothing in the

record would support a conclusion that he is incapable

of earning an income.26 To the contrary, the evidence
showed that the defendant was an educated, healthy

forty-four year old with some business experience, and

he testified at trial that, once he expended his assets,

he was ‘‘going to have to hustle and figure some things

out, get . . . some salaried or . . . contract work

. . . and hope that what [he’s] been working on for the

last three years will come to fruition down in the . . .

Virgin Islands.’’ In addition, the defendant’s counsel

admitted to the trial court that the defendant ‘‘is intelligent, he is healthy, and he is capable of working.’’

Accordingly, we cannot conclude that it would be

unconscionable to expect the defendant to obtain

employment to replace the unexpected loss of his

income from Intermountain Industries.27 Indeed, if we

were to conclude otherwise, an employed person who

entered into a prenuptial agreement and, after the marriage, lost his or her job could simply refuse to seek

employment and then claim that his or her lack of

employment was a dramatic change in circumstances

warranting invalidation of the agreement.

Moreover, there is no evidence that the defendant,

unforeseeably or otherwise, gave up any income earning or asset building opportunities as a result of his

marriage or the births of the children, or that he made

significant and ongoing contributions to family life,

such as shopping, doing household chores, entertaining

the plaintiff’s associates and family, or caring for the

children, for which it would be unfair, much less unconscionable, not to compensate him. Cf. Hornung v. Hornung, supra, 323 Conn. 163 (‘‘[b]ecause the plaintiff’s

efforts as a homemaker and the primary caretaker of

the children increased the defendant’s earning capacity

at the expense of her own, she is entitled to [an alimony

award that will allow her to] maintain [her high predissolution] standard of living after the divorce, to the

extent possible’’). To the contrary, the trial court found

that the defendant ‘‘did not make the plaintiff or the

children even a remote priority in his life.’’ We conclude,

therefore, that the trial court correctly determined that

enforcement of the prenuptial agreement in the present

case would not be unconscionable in light of all of the

relevant facts and circumstances.

Finally, the defendant contends that it was inconsistent for the trial court to conclude that it would be

unconscionable to enforce the provision of the prenuptial agreement requiring a party who unsuccessfully

seeks to invalidate any portion of it to pay the attorney’s

fees of the other party but not unconscionable to

enforce the remainder of the agreement. We disagree.

Significantly, the prenuptial agreement contained a severability clause that expressly contemplated that, if one

or more of its terms were found to be invalid, the rest

of the agreement would survive. See A. Rutkin et al.,

8A Connecticut Practice Series: Family Law and Practice with Forms (3d Ed. 2010) § 50.53, p. 256; cf. Venture

Partners, Ltd. v. Synapse Technologies, Inc., 42 Conn.
App. 109, 118, 679 A.2d 372 (1996) (discussing principles

of severability under Connecticut contract law). In sister states that, like Connecticut, have premarital agreement statutes like § 46b-36g that are modeled after the

Uniform Premarital Agreement Act; see, e.g., Friezo

v. Friezo, supra, 281 Conn. 183–84; the presence of a

severability clause renders enforceable the remainder

of a prenuptial agreement that contains a provision that

is unconscionable or invalid as a matter of law. See,

e.g., In re Marriage of Heinrich, 7 N.E.3d 889, 906

(Ill. App. 2014) (concluding that severability clause left

‘‘remainder of the agreement . . . unaffected by

[court’s] holding’’ that agreement’s ‘‘[attorney fee shifting] ban as to [child related] issues violates [Illinois]

public policy and is unenforceable’’ as to those issues);

Sanford v. Sanford, 694 N.W.2d 283, 293 (S.D. 2005)

(emphasizing presence of savings clause in concluding

that ‘‘[p]rovisions in a prenuptial agreement purporting

to limit or waive spousal support are void and unenforceable as they are contrary to public policy, and

[that they] may be severed from valid portions of the

prenuptial agreement without invalidating the entire

agreement’’); cf. Rivera v. Rivera, 149 N.M. 66, 72–73,

243 P.3d 1148 (N.M. App.) (premarital agreement was

unenforceable because it contained provision waiving

right to seek spousal or child support in violation of

state statute, and ‘‘agreement [did] not contain a severability clause, and [w]ife [made] no argument that the

remainder of the agreement should not be affected by

the invalidity of the support provisions’’), cert. denied,

149 N.M. 64, 243 P.3d 1146 (2010). Accordingly, the trial

court did not act inconsistently as a matter of law in

concluding that the effect of enforcing the attorney’s

fees provision was unconscionable because it would

‘‘financially cripple’’ the defendant, while also finding

that the remainder of the agreement was enforceable.

Because enforcement of the remainder of the agreement would, as we explained, leave the defendant with

significant assets sufficient to provide for his needs

until he can obtain a source of income, the trial court

properly allowed the parties the benefit of the bargain

to which they had agreed before their marriage.

The judgment is affirmed.

In this opinion the other justices concurred.

* November 17, 2021, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 General Statutes § 46b-36g provides in relevant part: ‘‘(a) A premarital

agreement or amendment shall not be enforceable if the party against whom

enforcement is sought proves that:

* * *

‘‘(2) The agreement was unconscionable when it was executed or when

enforcement is sought;

* * *

‘‘(c) An issue of unconscionability of a premarital agreement shall be

decided by the court as a matter of law.’’

2 The defendant appealed to the Appellate Court, and we transferred the

appeal to this court pursuant to General Statutes § 51-199 (c) and Practice

Book § 65-1.

3 Financial disclosures attached to the prenuptial agreement indicated
that the value of the defendant’s assets at the time of the marriage was

$13,267,952.81. It was discovered during the dissolution proceedings that

this figure had been established by using generally accepted accounting

practices, rather than fair market value, and that the fair market value of

the assets was $5,150,295.

4

Intermountain Industries was an oil and gas exploration business in

which the defendant’s father had a controlling interest. Intermountain Industries made dividend payments to an entity known as Century American,

which, in turn, made guaranteed payments to 4H, LLC, the members of

which were the defendant’s father and his lineal descendants, including the

defendant.

5 The trial court made no findings in connection with the defendant’s

claim at trial that the prenuptial agreement was unconscionable when the

parties executed it, and the defendant does not pursue that claim on appeal.

6 Specifically, the financial affidavit indicated that he had a weekly income

of $2 from dividends and interest payments.

7

In determining this amount, the trial court relied on a child support

guidelines worksheet dated February 12, 2019, in which the plaintiff stipulated that she received $48,361 in gross weekly income and mandatory

deductions of $14,077, for a net weekly income of $34,284. The plaintiff

submitted a subsequent financial affidavit to the trial court dated February

20, 2019, indicating that her net weekly income was $24,505. This figure

appears to have been a clerical error, as the same affidavit indicates that

her gross weekly income was $48,361, and mandatory deductions were

$14,491, which would yield a net weekly income of $33,870.

8 The parties stipulated that, for child support purposes only, the defendant

had a gross weekly income of $3720 and a net weekly income of $2569.

9 The trial court made no finding on the issue, but the undisputed evidence

showed that the defendant had liabilities of $1.35 million, yielding a net

worth of approximately $750,000.

10 The trial court stated that, ‘‘[a]lthough the defendant was not financially

crippled after his home burned down, the Yacht Club was underinsured,

and the insurance proceeds could not fully restore the property to its prior

form. In addition to the defendant’s financial losses from these unforeseen

events, he was no longer able to generate revenue from the Yacht Club after

it was destroyed, significantly diminishing his assets.’’

11 Evidence presented at trial showed that the plaintiff had paid attorney’s

fees in the amount of $1,559,713.17 defending against the defendant’s cross

complaint seeking invalidation of the prenuptial agreement.

12 After this appeal was filed, the plaintiff filed a motion for leave to file

a late conditional cross appeal in which she requested permission to cross

appeal from the trial court’s ruling invalidating the attorney’s fees provision

in the event that the Appellate Court reversed the judgment and remanded

the case to the trial court for a new trial without resolving the issue of the

enforceability of the prenuptial agreement. The Appellate Court denied the

motion, and this claim is not before us.

13 The defendant also claims that the trial court improperly precluded him

from soliciting testimony as to whether the parties contemplated certain

events when they entered into the prenuptial agreement. Because we conclude that enforcement of the agreement is not unconscionable, even assuming that the events at issue were not contemplated by the parties, we need

not address this claim.

14 The plaintiff also contends, essentially as an alternative ground for

affirmance, that the trial court incorrectly determined that the parties did

not contemplate that they would have children, that the defendant’s house

would be destroyed by fire, that the Yacht Club would be destroyed by a

hurricane and that Intermountain Industries would fail. There appear to be

two separate bases for this claim. First, the plaintiff appears to contend

that these events were contemplated by the parties as a matter of law

because the prenuptial agreement expressly provided that ‘‘[n]o change in

circumstances of the parties shall render [the] [a]greement unconscionable

if enforcement hereof is sought at any time in the future.’’ Second, the

plaintiff claims that these events were, as a factual matter, within the contemplation of the parties. We are doubtful, however, whether a ‘‘no change in

circumstance’’ provision could save a prenuptial agreement that otherwise

would be unenforceable as unconscionable. We need not resolve these

issues here, however, because we conclude that the trial court correctly

determined that the existence of these uncontemplated events did not render

the enforcement of the prenuptial agreement unconscionable.

15 Bedrick involved the enforceability of a postnuptial agreement. See
Bedrick v. Bedrick, supra, 300 Conn. 693. The same principle, however,

applies to prenuptial agreements. See id., 696–97; Crews v. Crews, supra,

295 Conn. 167 (‘‘equitable considerations codified in our statutes . . . have

no bearing on whether [a prenuptial] agreement should be enforced’’ (internal quotation marks omitted)).

16 As we indicated; see footnote 14 of this opinion; we need not address

the plaintiff’s challenge to the trial court’s factual findings on these issues

because, even assuming that, contrary to the plaintiff’s claim, the findings

were correct, we agree with the trial court’s legal conclusion that those

facts did not render the prenuptial agreement unconscionable.

17 The defendant testified at trial that, since the dissolution action was

brought, he has paid rent of $3500 per month for a 983 square foot, three

bedroom house in the Rowayton neighborhood of Norwalk. He further

testified that the house has a garage that he has converted into a playroom,

laundry room, workshop and storage area.

18 See Regs., Conn. State Agencies § 46b-215a-1 (6). The current version

of the child support guidelines recognizes that there has been ‘‘a trend away

from ‘custodial/noncustodial’ and ‘visitation’ language toward the concept of

shared parenting.’’ Child Support and Arrearage Guidelines (2015), preamble,

§ (g), p. xii. The guidelines also recognize that, ‘‘within the context of shared

physical custody, both parents are essentially custodial.’’ Id. When that is

the case, the guidelines provide that ‘‘the most practical approach [is] for

[child support] to be paid by the parent with the higher income.’’ Id. As we

have indicated, in the present case, the plaintiff has primary physical custody

of the children, and the defendant has made no claim that he is entitled to

child support on the ground that the parties have shared custody. To the

contrary, he agreed to pay child support to the plaintiff and concedes that

he is not entitled to receive child support from her.

19 We note that there is considerable overlap between the factors that the

trial court must consider when crafting an alimony award pursuant to General Statutes § 46b-82 and the factors that it must consider when assigning

property pursuant to General Statutes § 46b-81. Neither statute authorizes

the court to consider the ability of a spouse to support his or her children,

and the defendant has cited no authority for the proposition that, unlike an

alimony award, it is proper to assign property for that purpose.

20 The court in Melrod v. Melrod, 83 Md. App. 180, 574 A.2d 1, cert. denied,

321 Md. 67, 580 A.2d 1077 (1990), observed that the failure to award an

indefinite award of alimony to the plaintiff wife might be unconscionable

because ‘‘it could not help but have some effect upon the child to go back

and forth between a father who can afford to live in luxury and a mother

who is required to exercise some degree of frugality.’’ Id., 197. Melrod

involved a Maryland statute providing that a court may award alimony for

an indefinite period if the court finds that, ‘‘even after the party seeking

alimony will have made as much progress toward becoming self-supporting

as can reasonably be expected, the respective standards of living of the

parties will be unconscionably disparate.’’ Md. Code Ann., Fam. Law § 11-

106 (c) (2) (1984); see Melrod v. Melrod, supra, 196. Connecticut has no

such statute, and, as we explained, alimony may not be used in this state

to disguise child support. Although we recognize that it may be difficult for

some children under some circumstances to grapple with the fact that their

parents have disparate standards of living, we do not agree with the court

in Melrod to the extent that it concluded that it is unconscionable to permit

a child who enjoys the same high standard of living that he or she did before

the dissolution to have a relationship with a parent who lives in a somewhat

more modest manner. Indeed, spending time with a less affluent parent

could be just as beneficial to a child as time spent with an affluent parent.

21 As we indicated, if the parents have shared physical custody of the

children, the parent with the lower income can make a claim for child

support. See footnote 18 of this opinion. That is not the case here. If the

legislature believes there is a gap in the statutory scheme governing marital

dissolutions and financial awards in this regard, it is free to address that

gap legislatively. It is not the role of this court to create public policy in

this highly regulated area.

22 In such a situation, the fact that the lower income noncustodial parent

is unable to provide for himself in the same manner as when the prenuptial

agreement was executed may, depending on all of the relevant facts and

circumstances, justify invalidating the agreement and awarding alimony on

that ground. See footnote 27 of this opinion. We are aware of no authority,

however, for the proposition that a noncustodial parent who otherwise

would not be entitled to alimony would be entitled to it solely on the basis
of his ‘‘need’’ to provide for his children in the same manner as the custodial

parent. See, e.g., Loughlin v. Loughlin, supra, 280 Conn. 655 (it is improper

to disguise child support as alimony).

23 This court concluded in Bedrick that postnuptial agreements are subject

to stricter scrutiny than prenuptial agreements when a court is determining

whether they are enforceable at the time of execution. Bedrick v. Bedrick,

supra, 300 Conn. 703–704. Specifically, unlike prenuptial agreements, postnuptial agreements ‘‘are subject to special scrutiny and the terms of such

agreements must be both fair and equitable at the time of execution . . . .’’

Id., 697. Courts apply the same standard, however, when determining

whether postnuptial and prenuptial agreements are enforceable at the time of

enforcement, namely, whether the agreement was unconscionable. Id., 704.

24 The defendant suggests that this testimony related to his expectations

during the marriage, not at the time that he executed the prenuptial agreement. As we have indicated, we assume, without deciding, that the trial

court correctly determined that the parties did not ‘‘contemplate’’ having

three children when the agreement was executed. As we have also suggested,

however, the question of whether an event was ‘‘contemplated’’ is not a

black and white one but involves shades of gray. Although the parties may

not have ‘‘contemplated’’ having three daughters within five years of the

marriage in the sense that they did not expressly discuss the matter and

had no specific plan when they entered into the agreement shortly before

the marriage, it seems highly implausible that they had a conscious plan to

have no children at that time but that several months after the marriage

when the plaintiff became pregnant, the defendant suddenly developed a

plan to ‘‘be fruitful and multiply.’’ We conclude, therefore, that, even if the

births of the three children were not contemplated when the agreement

was executed, in the sense that the births were not consciously and explicitly

planned, they were not so completely beyond or contrary to expectation

that enforcement of the agreement would work an injustice. See McHugh

v. McHugh, supra, 181 Conn. 489.

25 The defendant points out that, after the marriage, the parties lived in

the defendant’s house, ‘‘where he paid the carrying costs,’’ until it was

destroyed in the fire. They then leased another house using insurance proceeds. The evidence also showed, however, that the plaintiff provided

approximately 75 percent of the furnishings for the defendant’s house, for

which she received insurance compensation, and she spent $50,000 to

$60,000 on improvements to the defendant’s property, for which she never

made any claim. The trial court made no finding as to whether the evidence

that the plaintiff lived in the defendant’s house supported the conclusion

that the defendant provided financial support to the plaintiff, and we conclude that the evidence does not compel the conclusion that he did. The

only finding that the trial court made on this issue was that ‘‘[t]he parties

kept their money separate and devoted vastly different amounts of effort

and respect into their marriage . . . . Instead of trying to provide for the

plaintiff and their young children, the defendant remained stagnant and

engulfed in a selfish mentality until he lost his footing in his business and

his marriage.’’

26 The defendant contends that this court is precluded from considering

his ability to provide for himself because the trial court did not expressly

specify his earning capacity. See, e.g., Tanzman v. Meurer, 309 Conn. 105,

117, 70 A.3d 13 (2013) (trial court must specify dollar amount of party’s

earning capacity when that factor provides basis for financial award because

failure to do so ‘‘leaves the relevant party in doubt as to what is expected

from him or her, and makes it extremely difficult, if not impossible, both

for a reviewing court to determine the reasonableness of the financial award

and for the trial court in a subsequent proceeding on a motion for modification to determine whether there has been a substantial change in circumstances’’). The defendant fails to recognize that the trial court in the present

case was not determining the amount of a financial award pursuant to § 46b82 (a) and General Statutes § 46b-86, as in Tanzman, but was determining

whether enforcement of the prenuptial agreement would be unconscionable

under § 46b-36g (a) (2) in light of all of the relevant facts and circumstances.

The defendant bore the heavy burden of proving an extraordinary change

in circumstances to prevail on that issue. See, e.g., Crews v. Crews, supra,

295 Conn. 169. The defendant has pointed to no evidence that would support

a finding that, as of the date of the dissolution, he was no longer capable

of earning an income, and he made no such claim to the trial court or

on appeal.

27 The defendant’s counsel contended at oral argument before this court
that the defendant should not be required to establish that he will be unable

to provide for his basic needs before the enforcement of the prenuptial

agreement can be found to be unconscionable under § 46b-36g (a) (2),

because such an interpretation of that statute would render § 46b-36g (b)

superfluous. See General Statutes § 46b-36g (b) (‘‘[i]f a provision of a premarital agreement modifies or eliminates spousal support and such modification

or elimination causes one party to the agreement to be eligible for support

under a program of public assistance at the time of separation or marital

dissolution, a court, notwithstanding the terms of the agreement, may require

the other party to provide support to the extent necessary to avoid such

eligibility’’). We agree with the defendant that there may be circumstances

in which the enforcement of a prenuptial agreement would be unconscionable even though the party seeking to invalidate the agreement would be

able to provide for his or her basic needs if the agreement were to be

enforced. Cf. Bevilacqua v. Bevilacqua, 201 Conn. App. 261, 273–74, 242 A.3d

542 (2020) (trial court correctly concluded that enforcement of prenuptial

agreement would be unconscionable when ‘‘there was evidence in the record

that [a motor vehicle accident resulting in a mild traumatic brain injury]

impaired the plaintiff’s ability to work full-time, and, as a result, she was

forced to obtain part-time employment at a salary far lower than the one

she earned at the time the agreement was executed’’). That does not mean

that the question of whether the party seeking to invalidate the agreement

will be able to provide for his or her basic needs if the agreement is enforced

is always irrelevant to the determination of whether enforcement would be

unconscionable. Indeed, there may be cases in which, under all of the

relevant facts and circumstances, the enforcement of a prenuptial agreement

would not be unconscionable despite a significant reduction in the income

of the party seeking invalidation, provided that the court finds that the party

can still provide for his or her basic needs. We need not resolve that issue

in the present case, however, because the defendant presented no evidence

that he is no longer capable of earning an income comparable to the income

that he was earning when he executed the prenuptial agreement. See footnote 26 of this opinion.