Less than a year after the court entered the MSA, Tonya filed her first request for orders (RFO) asking the court to modify the <mask> agreement. Donald's annual bonus for 2009 had been significantly lower than previous years2 and, although it was primarily due to the poor performance of the region he had recently taken over, Tonya read some articles discussing changes to the compensation of executives in the banking industry and believed Donald may have received additional shares of restricted stock or stock options in lieu of a portion of his typical cash bonus. In addition, Tonya asserted she was only working part time for less than $15 per hour, and had been unable to find another more lucrative position. She therefore asked the court to award her additional support, and also argued the court should interpret the bonus provision in the MSA to include 35 percent of any stock options that Donald received in lieu of a cash bonus. In response, Donald filed a motion for sanctions claiming that Tonya submitted her motion to modify support in bad faith.


Likewise, the " 'trial court's discretion to modify the <mask> order is constrained by the terms of the marital settlement agreement.' " ( Dietz , supra , 176 Cal.App.4th at p. 398, 97 Cal.Rptr.3d 616.) Marital settlement agreements incorporated into a dissolution judgment are interpreted under the same rules governing contract interpretation generally. ( In re Marriage of Hibbard (2013) 212 Cal.App.4th 1007, 1012, 151 Cal.Rptr.3d 553 ; In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439, 64 Cal.Rptr.2d 766.) " ' "The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs." ' " ( Hibbard , at p. 1013, 151 Cal.Rptr.3d 553.)


*859The 3-23 Order sets forth wife's objections stating the court does not have the authority to reconsider the prior ruling, and the court's response that the Le Francois court "found that while legislation may limit what matters are *207brought by parties before the court, it may NOT limit a court's power to reconsider its rulings on its own." The court explained "[w]hile there was no math error" in the 2-21 Order, there were three other factors the court wanted to address. The 3-23 Order, among other things, modifies downward from the 2-21 Order the temporary <mask> amount awarded to wife, and imposes an effective date retroactive to March 1, 2017. Wife appeals.


Prior to the hearing, the trial court issued a tentative ruling denying Mendoza's request. After hearing from the parties, the court adopted its tentative as the final ruling. In an oral statement of decision, the court explained that in the absence of a separate request for temporary <mask>, it may not make a spousal support order retroactive to the filing date of a petition for dissolution. Mendoza did not appeal that decision.


Husband argues the Agreements themselves reflect the parties' reasonable expectations upon entering the agreements that an increase in Wife's salary would not constitute changed circumstances. Specifically, he points to the fact the parties did not cap the <mask> but did include a termination date in 2020, years before spousal support obligations would ordinarily terminate after dissolution of a lengthy marriage.4 Alternatively, Husband argues there *425is insufficient evidence of changed circumstances. He contends the 2012 marital standard of living "was roughly *455$475,000," based on Wife's 2012 taxable income of $189,000 and Husband's income of $156,516, $151,899 of which was nontaxable. Husband further points out that at the time of Wife's petition, he was earning $125,000, while Wife's base salary was $265,000, which is short of the marital standard of living even without accounting for inflation.


Under UIFSA, the rules differ for <mask> and child support. A state *896issuing a spousal support order has continuing, exclusive jurisdiction over the spousal support order throughout the existence of the support obligation. (1996 UIFSA § 205, subd. (f); Former Fam. Code, § 4909, subd. (f), added Stats. 1997, ch. 194, § 1, p. 882 [see Fam. Code, § 5700.211, subd. (a) ].)


KAHN, J. The issue before us in this appeal is whether the trial court correctly determined that the enforce- ment of a prenuptial agreement executed by the plain- tiff, 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 attor- ney’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 disso- lution 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 dissolv- ing the marriage and enforcing the terms of the prenup- tial 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 con- tends 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 dissolu- tion. 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 prop- erty 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]epa- rate [p]roperty [of the other party, as defined in the agreement],’’ and to ‘‘any claim for temporary or perma- nent maintenance, support, alimony, [attorney’s] fees (including [pendente] lite [attorney’s] fees) or any simi- lar 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 [attor- ney’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]gree- ment 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 unconscio- nable 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 Part- nership (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 com- pletely 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 law- yer. Two weeks later, the house in Norwalk where the parties resided, which the defendant owned, was com- pletely 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 mar- riage, 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 agree- ment 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 own- ership interest, was destroyed by Hurricane Irma. Also in 2017, Intermountain Industries failed due to a down- turn 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, represent- ing the trust’s ownership interests in other assets, ‘‘pri- marily [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 enforce- ment 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 par- ent 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 fail- ure of Intermountain Industries. Accordingly, the plain- tiff argued that, even if the events were not contem- plated, 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 defen- dant’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 defen- dant 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 mar- riage.’’ 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 chil- dren, 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 specifi- cally 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 unconsciona- ble. 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 crip- ple 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 chal- lenges 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 agree- ment 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 con- tends 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 con- template these events, the trial court correctly deter- mined that they were not so far beyond their contempla- tion 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 agree- ment was unconscionable when it was executed or when enforcement is sought . . . .’’ Whether the pre- nuptial 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 unconscio- nability 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 unconscio- nable 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 contempla- tion 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 agree- ment 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, ante- nuptial 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] agree- ment 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 agree- ment unconscionable. . . . Instead, the question of whether enforcement of an agreement would be uncon- scionable is analogous to determining whether enforce- ment of an agreement would work an injustice. . . . Marriage, by its very nature, is subject to unforeseeable developments, and no agreement can possibly antici- pate 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 seek- ing 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 signifi- cant 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 destruc- tion 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 Indus- tries 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 uncon- scionable. 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 con- sider 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 enforce- ment of the prenuptial agreement would be unconscio- nable in light of the uncontemplated births of the par- ties’ 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 liv- ing [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 per- suaded. 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. Tom- linson, 305 Conn. 539, 46 A.3d 112 (2012), ‘‘the legisla- ture 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 (Empha- sis 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 [non- custodial] 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 sup- port amount ‘‘would enhance the lower income [non- custodial] parent’s ability to foster a relationship with the child . . . .’’ (Internal quotation marks omitted.) Id.; see also Regs., Conn. State Agencies § 46b-215a- 5c (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 recog- nized that a lower income noncustodial parent may be permitted to pay less than the presumptive child sup- port 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 noncusto- dial 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 dispar- ity’’ 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 sup- port 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 noncusto- dial parent cannot receive child support supports his argument that the prenuptial agreement is unconsciona- ble 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 defen- dant appears to suggest that, in the absence of the prenuptial agreement, the trial court would be author- ized 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 regula- tions expressly contemplates that, after a marital disso- lution, the parents of a child may have an ‘‘[e]xtraordi- nary disparity’’ in income. It follows that the regulation contemplates that a child may well have a higher stan- dard 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 uncon- scionable, 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 agree- ment 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 plain- tiff 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 settle- ment 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 forty- one 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 book- keeping support. Id. Since 2001, when the business began to deteriorate, the plaintiff had managed all busi- ness 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 quo- tation 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-XX-XXXXXXX, 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 defen- dant’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 contrib- uted 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 dissolu- tion, 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 ade- quately 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 intelli- gent, 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 mar- riage, 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 earn- ing 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 uncon- scionable, not to compensate him. Cf. Hornung v. Hor- nung, 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 predis- solution] 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 inconsis- tent for the trial court to conclude that it would be unconscionable to enforce the provision of the prenup- tial 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 sev- erability 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 Prac- tice 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 sis- ter states that, like Connecticut, have premarital agree- ment 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 shift- ing] 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 <mask> are void and unen- forceable 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 sever- ability 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 agree- ment 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. 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.’’ 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. 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. Intermountain Industries was an oil and gas exploration business in which the defendant’s father had a controlling interest. Intermountain Indus- tries 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. 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. Specifically, the financial affidavit indicated that he had a weekly income of $2 from dividends and interest payments. In determining this amount, the trial court relied on a child support guidelines worksheet dated February 12, 2019, in which the plaintiff stipu- lated 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. 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. 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. 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.’’ 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. 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. 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 con- clude that enforcement of the agreement is not unconscionable, even assum- ing that the events at issue were not contemplated by the parties, we need not address this claim. 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 contem- plation 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. 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’’ (inter- nal quotation marks omitted)). 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. 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. 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. We note that there is considerable overlap between the factors that the trial court must consider when crafting an alimony award pursuant to Gen- eral 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. 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. 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. 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). 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, post- nuptial 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. The defendant suggests that this testimony related to his expectations during the marriage, not at the time that he executed the prenuptial agree- ment. 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. 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 pro- ceeds. 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 con- clude 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.’’ 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 modifica- tion to determine whether there has been a substantial change in circum- stances’’). The defendant fails to recognize that the trial court in the present case was not determining the amount of a financial award pursuant to § 46b- 82 (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. 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 premar- ital 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 unconsciona- ble 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 foot- note 26 of this opinion.


Civil Code section 47, subdivision (b)(1) is not ambiguous about the judicial filings to which it applies. It applies to "any pleading or affidavit filed in an *224action for marital dissolution or legal separation." ( Civ. Code, § 47, subd. (b)(1), italics added.)8 It does not say that it applies only when a particular type of relief is sought. Nor does it exclude any category of filings. Orders in marital dissolution actions typically provide many different types of relief in addition to an order changing the status of the parties, including orders concerning: (1) child custody; (2) child support; (3) <mask>; (4) settlement of property rights; and (5) attorney fees. ( Fam. Code, § 2010.) In addition, during the dissolution proceeding, a court may issue temporary orders concerning custody and support, the restraint and disposition of property, and the protection of the parties. (See Fam. Code, §§ 754, 2045, 2047, 3022, 3060, 3600.) Thus, the category of pleadings filed in a dissolution action is much broader than the category of pleadings filed for a change in marital status. A statute specifying the former category cannot reasonably be read to include only the latter.


After stipulating to a temporary support order, Donald and Tonya attended a mandatory settlement conference and reached an agreement regarding the division of marital assets and ongoing <mask>. Tonya's attorney read the agreement into the record and also filed a written MSA delineating the terms of the agreement. The agreement required Donald to pay Tonya spousal support in the amount of $7,500 per month plus 35 percent of "any gross bonuses received by [Donald], commencing August 15, 2009, and continuing thereafter until the death of either party or the remarriage of [Tonya], whichever occurs first, subject to the jurisdiction of the Court to alter, modify, or terminate this provision upon a proper showing having first been made to the Court." The agreement noted the spousal support was premised on *223Donald's monthly income of approximately $25,000 per month, less expenses, and an imputation of 40 hours of work per week at an hourly rate of $16 for *919Tonya. The court incorporated the written agreement into a final judgment of dissolution entered on December 8, 2009.


The court issued its decree on June 21, 2017, in which it granted Jose an absolute divorce and granted sole custody of the children to Maria. It ordered Jose to pay $346 biweekly in child support and $100 per pay period in <mask>, both effectuated through wage assignment. The court awarded Maria the couple's home and mortgage and awarded Jose title to the Nissan and Honda vehicles. The court found that neither party could afford the couple's 2016 Chevrolet Traverse and ordered that it be immediately sold or returned to the dealership. The parties were ordered to evenly split the debt remaining on the truck after the sale, with Maria getting credit for the monthly payments she had made on the vehicle. The court awarded Jose "the marital fraction, if any there be, of Ms. Garcia's pension with the Little Rock School District."


Subject to exceptions not applicable here, a court may order temporary *921<mask> in "any amount" during the pendency of a dissolution proceeding, based on the moving party's need and the other party's ability to pay. (§ 3600.) The purpose of pendente lite spousal support is to maintain the parties' standards of living in as close as possible to the preseparation status quo, pending trial. In fixing temporary spousal support, trial courts are not *104restricted by any set of statutory guidelines. The amount of the award lies within the trial court's sound discretion, and is reversible only on a showing of clear abuse of discretion. ( In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327, 16 Cal.Rptr.3d 489.)


Tonya asserts the court erred in its decision by: (1) concluding the term "bonus" in the MSA did not include certain restricted stock and relocation monies; (2) placing a cap on the amount of Donald's future bonuses available for support; (3) determining that she had the ability to work; (4) awarding Donald attorney's fees in the form of sanctions pursuant to Family Code section 2711 ; and (5) denying her request for additional needs-based attorney's fees pursuant to section 2030. With respect to most of these rulings, we conclude the court did not err. With respect to the orders modifying <mask>, we conclude the court correctly determined that Donald's increase in bonus pay constituted a change of circumstances sufficient to warrant a modification of spousal support, but that substantial evidence does not support *918certain of the court's findings regarding Tonya's ability to work. We therefore affirm in part, reverse in part, and remand the matter for limited further proceedings in accord with this opinion.


The provisions of UIFSA do not determine jurisdiction over <mask> orders. California, as the issuing state, had *897continuing, exclusive jurisdiction over spousal support. (Former Fam. Code, § 4909, subd. (f), Stats. 1997, ch. 194 [see Fam. Code, § 5700.211, subd. (a) ].) Further, California had jurisdiction over child support because Joseph was a resident of California and Diane consented to jurisdiction. (Former Fam. Code, § 4905, subd. (2) ; Stats. 1997, ch. 194, § 1, p. 880; [see Fam. Code, § 5700.201, subd. (a)(2) ].) Thus, California had jurisdiction to issue the 2015 order.


George contends that Swain , supra , 21 Cal.App.5th 830, 230 Cal.Rptr.3d 614 supports her position because it held that the family court was required to exclude a declaration filed by a party in connection with a motion in family court when the opposing party was unable to cross-examine the declarant. However, Swain is inapposite because of the specific circumstance there, in which the appealing party had no opportunity to take the appropriate steps to make the declarant available for cross-examination. In Swain , a former husband filed a motion to terminate <mask>, and the former wife did not respond and did not appear at the hearing. ( Id . at p. 833, 230 Cal.Rptr.3d 614.) The family court continued the hearing and ordered the parties to file updated income and expense declarations. ( Ibid . ) Prior to the next hearing, the former wife filed an updated income and expense declaration, but she did not serve it on the former husband. ( Id . at pp. 832, 833, 230 Cal.Rptr.3d 614.) He saw the former wife's updated income and expense declaration for the first time at the hearing, at which the former wife did not appear. ( Id . at p. 834, 230 Cal.Rptr.3d 614.) At the hearing, the former husband objected *485that the family court should not consider the income and expense declaration because he had no opportunity to cross-examine his former wife about its contents. ( Ibid . ) The family court assured the former husband that it would not consider the declaration. ( Ibid . ) Nevertheless, the family court did end up considering the contents of the declaration in issuing its subsequent order ruling on the motion to terminate spousal support. ( Id . at p. 835, 230 Cal.Rptr.3d 614.) Swain held that, pursuant to section 217, the family court erred in relying on the former wife's declaration because the former husband was not able to conduct a cross-examination. "We agree that section 217 ... precludes reliance on inadmissible hearsay over a party's objection (subject to the good cause provision of section 217, subdivision (b)), at least where the party has no opportunity for cross-examination." ( Swain , at p. 837, 230 Cal.Rptr.3d 614.) Swain explained that the hearsay exception created by Code of Civil Procedure section 2009, which allows a party to proceed by declarations in the context of a motion, "does not apply to a motion to modify a family law judgment where, as here, the opposing party seeks to exclude the declaration on the ground that he or she is unable to cross-examine the declarant. In that situation, the opposing party's objection not only seeks to exclude hearsay evidence, but also amounts to an assertion of the party's right under section 217 to 'live, competent testimony that is relevant and within the scope of the hearing.' " ( Swain , at p. 841, 230 Cal.Rptr.3d 614.)


The parties met with the paralegal and signed the PMA on October 26, 1996. While Peter claimed he obtained a boilerplate agreement from the paralegal on October 17, 1996, and brought it home for Natalia to review, Natalia denied seeing the agreement prior to visiting the paralegal's office. Peter testified the parties had previously discussed a waiver of <mask> and that Natalia would be awarded custody of their children in the event of a dissolution of the marriage. At the time the parties executed the agreement, the "paralegal said that the agreement could be drafted by an attorney and had the parties sign an acknowledgment that the parties knew she was not giving legal advice." The parties agreed "that they went to the paralegal's office to sign the agreement in anticipation of their marriage and that financial disclosures were completed at the paralegal's office."


The unpublished parts of this opinion resolve the following issues. First, substantial evidence supports the trial court's explicit finding that David acquired the interest *411in his father's Huddleston Crane business as a gift and its implicit finding that the gift was not remuneratory. Consequently, the trial court did not err in determining David's ownership interest in the business was his separate property. Second, the questions involving the child support award in the June 2016 judgment are not moot. Third, the calculation of that child support award erroneously failed to account for the percentage of time each party had custody of their daughter and did not properly analyze David's voluntary contributions to a health savings account (HSA) in determining his net income available for child support. Fourth, as to permanent <mask>, the trial court's determination of David's income for purposes of evaluating his ability to pay support erroneously excluded David's California and federal income tax refunds and did not properly analyze David's voluntary contributions to a 401(k) plan and to a health savings account. Fifth, the trial court's finding that David's net rental income is $7,650 per month-a finding that affects both the child support and the spousal support calculations-is supported by substantial evidence and, therefore, will be upheld.


We do not mean to say that the trial court was wholly barred from awarding Janice <mask> as a result of Robert's waiver. His waiver, and the resulting reduction in her income, were changed circumstances which would tend-ceteris paribus -to increase her need for support. Howell specifically permitted a state court to take account of a military spouse's waiver of retirement pay in recalculating spousal support.


In addition, DeeDee seeks to overturn the trial court's temporary and permanent *90child and <mask> awards.2 We affirm *910that part of the judgment awarding permanent child support, and the trial court's temporary child and spousal support awards for two periods in 2015. But, we hold the trial court abused its discretion when it retrospectively modified 2014 pendente lite child and spousal support, because it based the modification on the parties' 2013 tax returns, rather than their 2014 tax returns, which were then available. We reverse that part of the judgment, and remand for the limited purpose of recalculating the 2014 awards in light of the 2014 tax returns. We also reverse the permanent spousal support award and remand for recalculation of that amount as well.


A court may modify a <mask> order upon a showing of a material change of circumstances since the last order. ( In re Marriage of Olson (1993) 14 Cal.App.4th 1, 9, 17 Cal.Rptr.2d 480.) The *610party seeking the modification bears the burden of establishing a material change. ( In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 78, 46 Cal.Rptr.2d 8 ( Stephenson ).) "In determining whether a change of circumstances has occurred, the trial court is required to reconsider the same standards and criteria set forth in ... Family Code section 4320 it considered in making the initial long-term order at the time of judgment and any subsequent modification order." ( Id. at pp. 77-78, 46 Cal.Rptr.2d 8, fn. omitted.) These criteria include, among other things, the earning capacity of each party, the ability of the supporting party to pay spousal support, the needs of each party, the age and health of the parties, the balance of hardships to the parties, and any other factors the court determines are just and equitable. ( § 4320.) In evaluating the supporting party's ability to pay support, the court may take into account not only income actually earned, but also unearned income and assets. ( § 4320, subd. (c) ; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 305, 111 Cal.Rptr.2d 755.)


Both parties submitted briefs. Husband argued "[t]he only problem is that [the amount ordered in the 2-21 Order] greatly exceeds [husband's] monthly cash flow." Husband requested that the court either change the amount of the <mask> to below the guideline amount or order each party to pay his or her own attorney and professional fees, and for wife to pay all of the house-related expenses.


Judge Towery continued the trial for a third day of proceedings on February 11, 2014. Notwithstanding his previous rulings regarding <mask>, the issue came up again, with regard to a pending request for child and spousal support set for hearing on February 20, 2014. Judge Towery reconfirmed that the issue of spousal support was "closed" based on Judge Gallagher's Trial Decision, and Judge Johnson's denial of the set aside motion. Natalia conceded she did not put the issue of section 1612, subdivision (c) before the court.


Substantively, the Putative Spouse Order provides in full as follows: "Without determining at this time whether Florencia is actually married to Juan, the Court finds that Florencia is the spouse or putative spouse of Juan such that she may pursue her claims as set forth in her petition(s), including support, award of property and obligations, attorney fees, and litigation costs."7 (Some capitalization omitted.) The family court continued the *326hearing to a date certain for the purpose of considering Florencia's requests for <mask> and attorney fees and costs.


"(a) Purpose "Under Family Code section 217, at a hearing on any request for order brought under the Family Code, absent a stipulation of the parties or a finding of good cause under (b), the court must receive any live, competent, and admissible testimony that is relevant and within the scope of the hearing. "(b) Factors "In addition to the rules of evidence, a court must consider the following factors in making a finding of good cause to refuse to receive live testimony under Family Code section 217 : "(1) Whether a substantive matter is at issue-such as child custody, visitation (parenting time), parentage, child support, <mask>, requests for restraining orders, or the characterization, division, or temporary use and control of the property or debt of the parties; "(2) Whether material facts are in controversy; "(3) Whether live testimony is necessary for the court to assess the credibility of the parties or other witnesses; "(4) The right of the parties to question anyone submitting reports or other information to the court; "(5) Whether a party offering testimony from a non-party has complied with Family Code section 217(c) ; and "(6) Any other factor that is just and equitable. "(c) Findings "If the court makes a finding of good cause to exclude live testimony, it must state its reasons on the record or in writing. The court is required to state only those factors on which the finding of good cause is based." (Cal. Rules of Court, rule 5.113 (a), (b), (c), bolding omitted.)


Subsequently, Ashlyne filed an amended memorandum of points and authorities in opposition to Vikash's request to terminate <mask>.5 In this brief, Ashlyne asked the court to enforce the specific support requirements of the I-864 affidavit, requesting an order that Vikash "pay support at $1,196.15 per month." Ashlyne explained that the poverty guideline for a one-person household for 2014 was $11,670 per year, and she claimed Vikash was obligated to support her at $14,354.10 per year or $1,196.175 per month.


Domestic Relations Law §32 and Family Court Act § 412 are likewise determined to be inapplicable given the circumstances at bar. Both statutes speak to a spouse’s duty of "support”, not the responsibility to pay specific third-party expenses incurred by the other spouse. Further, both statutes establish a spouse’s financial responsibility to support the other spouse only if possessed of sufficient means or able to earn such means. In the case at bar, plaintiff has never so much as alleged that the defendant is possessed of sufficient means to pay the subject medical bills. Finally, any application, or cause of action, which seeks <mask> should be initiated in the appropriate Family Court. (Family Ct Act *454§ 411; see, Doctors Hosp. v Curtis, 135 Misc 2d 71 [1987]; State Univ. Hosp. v Moyer, 62 Misc 2d 761 [1970].)


Wife argued there was no arithmetic error in the 2-21 Order and "there has been no additional findings or new evidence presented whatsoever " to support reconsideration under Code of Civil Procedure section 1008, "which governs and limits the grounds upon which a motion for reconsideration can be heard to new facts or law-neither of which exist[s] here." Wife disagreed that the court had authority under Le Francois to reconsider its ruling in the absence of a motion. She further argued husband should be barred from affirmative relief regarding the 2-21 Order under the disentitlement doctrine because he violated the 2-21 Order by failing to make the first required <mask> payment due on March 1, 2017.


Section 4320 requires the court to consider the following factors in ordering <mask>: (1) the extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage; (2) the extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties; (3) the ability of the supporting party to pay spousal support; (4) the needs of each party based on the marital standard of living; (5) the obligations and assets of each party; (6) the duration of the marriage; (7) the ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the other party; (8) the age and health of the parties; (9) any history of domestic violence; (10) the immediate and specific tax consequences; (11) the balance of hardships to each party; (12) the goal that the supported party be self-supporting within a reasonable period of time; (13) any criminal conviction of an abusive spouse; and (14) "[a]ny other factors the court determines are just and equitable." (§ 4320, subds. (a) -(n).)


On September 25, 2015, Kevin filed a request for an order terminating further <mask>. He submitted a series of declarations in support of his request. In these declarations, he explained that he had turned 65 in July 2015 and decided to retire, handing his business, Berman & Ely, a private investigation and security firm, over to his current wife. He stated that his wife now ran the business "full time," and he was "not involved in the *608operation and do[es] not work there." Kevin stated, "[M]y wife ... has learned the trade and is running the business."


Father filed a timely "Request for Hearing Regarding Registration of Support Order" and "request[ed] that service of the registration of support be vacated (canceled) because" Italy is not a "state" as defined by UIFSA, and thus, the Department lacked authority to enforce the order. In his accompanying points and authorities, Father asserted that the Italian support order was not enforceable in California unless the Department could show that Italy had enacted a law or established procedures for issuance and enforcement of foreign support orders which are substantially similar to the procedures under UIFSA. In a supplemental brief, Father outlined what he described as "the vast differences between Italian support laws and the support laws in the State of California." He argued that Italy, unlike California, "has no ... laws detailing formulas and guidelines the courts are to follow in setting child support and <mask>," there is no presumption in Italy that "permanent spousal support in a marriage lasting less than ten (10) years will only be payable for one-half (1/2) the length of the marriage," and there is no set age for child support to terminate.


*428Because of its history with the parties and firsthand experience, it is for the trial court to craft a specific modification to <mask> in light of its finding of changed circumstances. But any restriction on additional spousal support should not deny Husband what the parties reasonably contemplated at the time they entered into the Agreements. For our part, we only direct that on remand the court (1) take account of the parties' reasonable expectation that Wife's earnings would continue to increase, and (2) modify the spousal support obligations accordingly.9


Third, while the court did not hold a hearing, it did invite the parties to argue the issues but indicated it "prefer[red] a 5 page written argument from each of [them]." Wife argues she requested that the court "adopt a briefing and hearing schedule that complied with the Code" but the record shows she only asked for "the standard briefing protocol and schedule." Wife did not ask for a hearing on the court's reconsideration of the 2-21 Order. Wife's request for a hearing schedule pertained to her request for an "expedited hearing date and briefing schedule" to seek relief from the court "to address [husband's] failure to comply with the Order After Hearing by failing to make the first <mask> payment that was due on March 1, 2017." The court responded that wife would have to file an appropriate motion because the matter was not before the court.


Before trial, through one or more stipulations and/or stipulated orders, the parties divided approximately $6.9 million of assets and additional funds were frozen. They also agreed to temporary child and <mask> payments without prejudice to retroactive adjustment after trial. Joe's accountant prepared a reconciliation and reimbursement schedule indicating *913how the previously allocated assets should be reallocated based on his tracing. The trial court adopted it and attached it to the judgment. DeeDee does not challenge the mathematics of the reconciliation, just the tracing on which it was based.


We conclude that as a matter of law, the <mask> order, agreed to by both husband and wife via form SB-12035 attached to the judgment, is not subject to termination by operation of law ( § 4337 ).8 In reaching this conclusion, it should be borne in mind that forms SB-12035 and FL-343 leave a lot to be desired. Although these forms contain language that acknowledges section 4337 's termination of spousal support by operation of law, the parties must affirmatively "opt in" to have the statutory requirement apply. However, logic suggests that the parties should affirmatively "opt out" of the statutory requirement in order to waive section 4337 's application. We urge the Judicial Council of California and the local courts to revise their forms so that the parties must specifically check a box to waive section 4337 's application.


in circumstances occurring after the February 2018 decree not contemplated when the decree was entered. This material change in circumstances was also deemed to be good cause to modify Mark’s alimony obligation. The court concluded that “there was no bad faith motive” in Mark’s reduced level of income, that the reduction did not result from “the mere passage of time” or Mark’s “wrongdoing or voluntary dissi- pation,” and that the change was permanent. Based on these findings, the court ordered Mark to pay $750 per month in alimony to Lisa and $797 per month in child support, with a 50-percent abatement of child support in August if Mark exer- cised 28 consecutive days of his summer parenting time. The order set March 31, 2020, as the effective date of modification and also required Mark to maintain health insurance for the minor child. Following the entry of the district court’s order, Mark filed a “Motion to Reconsider, Alter or Amend Order” that requested the court to set the date of modification back to January 1, 2020, and to further reduce his alimony obligation to $600 per month. Lisa also filed a “Motion for New Trial” alleging that the September 2020 order modifying Mark’s support obligation was “not sustained by sufficient evidence” and was “contrary to law.” Lisa also claimed that the district court’s order of modification “did not address or make findings of fact con- cerning [her] allegation of ‘unclean hands’ when the evidence was undisputed that [Mark] had the ability to pay child support and <mask>, yet intentionally elected not to pay sup- port due.” Following a hearing held on October 19, the court denied the parties’ respective motions in a journal entry entered on December 7. Lisa appeals. ASSIGNMENTS OF ERROR Lisa claims the district court abused its discretion in modify- ing Mark’s child support and alimony, because Mark’s reduced income was his own fault and thus could not be either a material change in circumstances or good cause justifying - 462 - Nebraska Court of Appeals Advance Sheets 30 Nebraska Appellate Reports HODGEN v. HODGEN Cite as 30 Neb. App. 456


In October 2013, Joseph moved in the California court to terminate <mask>. This motion was not heard until the following October; in the meantime, California courts addressed various other motions by the parties, such as for contempt and sanctions. The California court reduced the amount of spousal support to zero effective October 28, 2013, but found it "inappropriate" to disturb the Utah judgment on spousal support arrearages.


In September 2009, the parties each filed a marriage dissolution action against the other in the Los Angeles Superior Court family law court, which *433actions they stipulated to consolidate. On December 14, 2011, Jeffery filed a stipulation and order regarding their final property division, <mask>, and attorney fees and costs, which both parties, their counsel, and the family law court, through Judge Keith M. Clemens, signed.


With respect to Tonya's ability to work, the court went on to address the factors set forth in section 4320. In that context, it found that Tonya had not followed up on the recommendations for acquiring additional skills set forth in the 2008 vocational evaluation, and that her treating orthopedic surgeon, *230Dr. Gelb, did not agree she was unable to work. The court conceded that Dr. Gelb had testified Tonya had some limitations, but found that Tonya had no restrictions using a keyboard, nothing precluded her from working full time, and most of her complaints could be ameliorated by surgery. The court also addressed the remaining section 4320 factors, noting specifically that spending had been a source of friction throughout the marriage and that it appeared Tonya had continued to overspend after the marriage despite her limited ability to work. Thus, the court declined to make any modifications to the <mask> beyond the cap on Donald's bonuses.


Judith J. Gische, J. Defendant moves to dismiss that part of plaintiffs complaint which seeks the ancillary reliefs of custody, child support and <mask>. He claims that such issues have been fully litigated in the Italian courts and are barred here by principles of res judicata. Plaintiff opposes the motion and, instead, cross-moves to discontinue this divorce action, in its entirety and without prejudice. Defendant opposes the cross motion. He argues that there is no reason why these parties should delay ending their marriage. He is also claiming that because the Italian decree is res judicata, any dismissal of the ancillary issues should be made on the merits and with prejudice. Defendant fears that if plaintiff is allowed to discontinue this case without prejudice she will continue to bring in seriatim actions for the same relief.


Assuming the trial court in the instant matter could have considered unconscionability at the time of enforcement in evaluating the validity of the <mask> waiver contained in the PMA, we are persuaded by the policy permitting bifurcation of trials that the effective enforcement date of the spousal support waiver occurred at the September 2012 trial before Judge Gallagher, not the February 2014 trial on reserved issues conducted by Judge Towery. "The court may separately try one or more issues before trial of the other issues if resolution of the bifurcated issue is likely to simplify the determination of the other issues." (Rule 5.390(b) [formerly rule 5.175(c) ].) Appellate courts discussing the goals of bifurcation contemplate a final resolution of the bifurcated issues to aid in the later resolution of other issues. (See In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 257, 10 Cal.Rptr.2d 157 ; In re Marriage of Wolfe (1985) 173 Cal.App.3d 889, 893-894, 219 Cal.Rptr. 337.) The goal of simplifying the determination of other issues by first determining the validity of a premarital agreement would not be served if the parties could argue that the date of enforcement of the agreement was after the date of the bifurcated trial. Thus for purposes of evaluating unconscionability at the time of enforcement, we find the September 2012 trial to be the relevant point in time.


It found that "[Robert's] voluntary election and the resulting termination of [Janice's] share of the military retirement" was a material change of circumstances. It further found that it would be a "miscarriage of justice" to allow Robert, acting unilaterally, to increase his military-source income from $791 (taxable) to $3,132 (tax-free) while reducing Janice's military-source income from $541 to zero. After discussing each of the factors listed in Family Code section 4320, it concluded that Janice was entitled to receive $541 a month in <mask>.


Here, in setting forth their agreement regarding <mask>, the parties used form SB-12035, which required them to check a box if they wanted the section 4337 termination provision to apply. The trial court agreed that the form represented "an agreement between the parties." However, it found the argument that section 4337 does not apply "because there appears to be a check box and it wasn't checked" to be "a bit disingenuous." We disagree. Form SB-12035's check box provides a sufficient "writing" to represent the parties' agreement to waive section 4337. ( Cesnalis , supra , 106 Cal.App.4th at p. 1276, 131 Cal.Rptr.2d 436.)


In this action, plaintiff seeks to enter, register, and enforce a judgment of divorce and order of custody rendered by the courts of Abu Dhabi where both parties appeared and fully participated in the proceedings. The issues presented are the extent to which, under the doctrine of comity, this court should recognize and enforce the foreign judgment of divorce and the provisions for child and <mask>, custody of the children, and a distributive award for $250,000 under a mahr agreement, and whether either party is entitled to counsel fees pursuant to Domestic Relations Law §§ 236 (B) and 237 (a) and (b). For the reasons set forth at length below, this court finds no compelling public policy for refusing full recognition of the Abu Dhabi judgment of divorce under the doctrine of comity and, therefore, the defendant is precluded from attacking the validity of the foreign judgment of divorce in a collateral proceeding in the New York courts. The plaintiff is entitled to an award of counsel fees on her qualifying matrimonial claims, consisting of her efforts to obtain maintenance or distribution of property following a foreign judgment of divorce (Domestic Relations Law § 237 [a] [5]), and custody and maintenance of the children (Domestic Relations Law § 237 [b]). The defendant’s request for counsel fees is denied based upon lack of merit of his application.


Goodson argues that reversal of the decree is warranted because (1) he was not served with the complaint and summons in accordance with Rule 4 of the Arkansas Rules of Civil Procedure ; (2) the circuit court failed to exercise discretion or utilize any analysis under Arkansas Code Annotated 9-13-101 when it denied Goodson visitation with his minor son; (3) the circuit court abused its discretion by denying Goodson's motion for a continuance; (4) the circuit court abused its discretion when it admitted the transcript of a hearing on a petition for an order of protection; (5) the circuit court unequally divided the marital assets without making the findings required by Arkansas Code Annotated 9-12-315 ; (6) the circuit court erred when it awarded <mask> without analyzing the parties' financial needs, ability to pay, and other relevant factors; (7) the circuit court erred in awarding attorneys' fees to the appellee, Sharon Bennett; (8) the circuit court erred by not allowing Goodson to impeach Bennett's credibility; (9) the circuit court erred by denying Goodson's motion to reopen the record based on newly-discovered evidence; and (10) the circuit court's errors cumulatively denied Goodson a fair trial.


"3. <mask> [¶] ... [¶] "? SPOUSAL SUPPORT PAYMENTS. ?Petitioner Respondent shall pay spousal support to the other Party the sum of $ 1,000.00 per month, "?due one-half on the first and one-half on the fifteenth day of each month "due on the first of the month "due on the _____ day of each month "commencing 10/1/13 and continuing until 8/1/17. Spousal support shall terminate upon the death of either party or the remarriage of the supported party, or further order of the court, whichever occurs first."


Importantly, while New York authorizes the use of these enforcement tools, the federal law similarly draws no distinction between arrears and future support. Federal law defines a qualified domestic relations order as including any “judgment . . . which . . . relates to . . . alimony payments.” (29 USC § 1056 [d] [3] [B] [ii] [I].) There is nothing in ERISA which distinguishes between a QDRO for arrears in maintenance—as the judgment in this case represents—and a QDRO for ongoing maintenance payments. Because the federal statute does not differentiate between these two types of QDROs, this court declines to do so. In addition, any differentiation between a QDRO for unpaid arrears and QDRO to assure future payments would be contrary to the federal scheme, which is designed to allow spouses and families to have a privileged status under the law to collect state-mandated support payments from assets that other creditors of the truant spouse cannot access. There is no suggestion that a spouse, who converts the unpaid <mask> to judgment, should be left without access to pension funds, but a spouse, who seeks to assure future payments, is granted such access. For a spouse, the unpaid past obligations—which may leave past expenses unpaid and lead to accumulated debt—are at least as important as the security for the future payments. In this court’s view, the federal statutory scheme was designed to permit families, *587seeking support from scofflaw spouses through their pension assets, to both obtain recovery of past obligations and secure future payments. In that respect, the federal hand—the QDRO exception to the ERISA anti-alienation rules—fits neatly into the many fingers of the state glove, starting with CPLR 5205 (c) (1). The later provision specifies that trust property—the pension in this instance—is exempt from money judgments except as provided in paragraph (4) of that section. Subdivision (c) (4) of that section expressly provides that the exemption does not bar collection through a “qualified domestic relations order” or any order of maintenance “whether or not such arrears/past due support have been reduced to a money judgment.” In this instance, the money judgment, which the wife seeks to enforce, is indisputably maintenance arrears. A second finger in the state’s glove of remedies further supports the wife’s claim: CPLR 5241 envisions that a judgment for maintenance arrears can be collected from income from a “private pension or retirement program.” (CPLR 5241 [6].)


Nonetheless, citing Shimkus , supra , 244 Cal.App.4th at pages 1270 through 1271, 198 Cal.Rptr.3d 799, husband maintains that the trial court erred in relying on evidence in wife's declarations when they were never admitted into evidence. In Shimkus , the husband moved for a postjudgment order terminating <mask>. ( Id . at p. 1266, 198 Cal.Rptr.3d 799.) Both parties submitted declarations. At the start of the hearing, *1130the wife sought a ruling on her objections to the husband's declarations, but the trial court replied that "it would take oral testimony and would rule on any objections made when questions were asked." ( Ibid . ) Following testimony, and during closing argument, the wife referenced her declaration as containing specific evidence; however, the court stated "the evidence in the hearing was the testimony and documents admitted, and '[n]othing else.' " ( Id . at p. 1267, 198 Cal.Rptr.3d 799.) The court took the *363matter under submission and later granted the husband's motion. Regarding the declarations, the court characterized them as " 'un-received evidence,' " ruling that "the only evidence was that presented by oral testimony and exhibits introduced into evidence." ( Ibid . )


The wife’s counsel seeks a declaratory judgment that the award of counsel fees to her is in the nature of support, and therefore not subject to the statutory exemptions from execution of money judgments under CPLR 5205 (“Personal property exempt from application to the satisfaction of money judgments”) and 5222-a (i) (“Service of notices and forms and procedure for claim of exemption”), the latter of which provides: “The provisions of this section do not apply ... if the debt enforced is for child support, <mask>, maintenance or alimony.” Subdivision (i) of section 5222-a of the CPLR, which provides for notification of the debtor of the statutory exemptions from debt collection and a procedure for the debtor to assert exemption claims, became effective on May 4, 2009. Not surprisingly, the court has not been able to locate any cases interpreting whether subdivision (i) applies to attorneys’ fees.