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 <mask> 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 spousal support 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.


As such, no waiver of a person’s right to seek a divorce for longer than the statutory one year after execution of a separation agreement will be enforced by the court. The denial of defendant’s motion does not require the vacatur of the entire agreement. The separation agreement has an explicit provision for the severability of provisions found invalid by a court. More*195over, even in the absence of the <mask>, the remainder of the agreement would be enforceable. Indeed, there is no recited consideration for the five-year provision, and the papers fail to address the total absence of consideration for Mr. B. to wait four years longer than the law provides. (See Domestic Relations Law § 170 [6]; see e.g. Seligman v Seligman at 635; Hummel v Hummel at 599; Taft v Taft at 445; Jessup v LaBonte at 295.) Even though a portion of the agreement is declared void, the separation agreement still retains its vitality as the prerequisite to an action for a conversion divorce.


Malibu argues that any invalid portions of Measure R may be severed. (Preamble, supra , § 16.)11 A <mask> " ' "normally calls *1211for sustaining the valid part of the enactment, especially when the invalid part is mechanically severable...." ' ... ' "[s]uch a clause plus the ability to mechanically sever the invalid part while normally allowing severability, does not conclusively dictate it. The final determination depends on whether the remainder ... is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidity of the statute ... or constitutes a completely operative expression of legislative intent ... [and is not ] so connected with the rest of the statute as to be inseparable.... " ' " ( Gerken v. Fair Political Practices Com. (1993) 6 Cal.4th 707, 714, 25 Cal.Rptr.2d 449, 863 P.2d 694 ; see also *407Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 330-331, 118 Cal.Rptr. 637, 530 P.2d 605.)


We note that the Administrative Law Judge stated that the reimbursement provisions were a "non-severable part" of the overall Act. We disagree. "The test for severability in the absence of an express <mask> is one of legislative intent." Association of Tex. Prof'l Educators v. Kirby , 788 S.W.2d 827, 830 (Tex. 1990). The overall Act is largely not subject to preemption and can be given effect separate and apart from the specific rate-setting provisions at issue here. See id. at 830-31 (quoting Texas & P. Ry. Co. v. Mahaffey , 98 Tex. 392, 84 S.W. 646, 648 (1905) ). There is no indication that the Legislature would not have passed the Act without the rate provisions as they apply to air ambulances or that the Act cannot function without those provisions as applied here. See id. ; Rose v. Doctors Hosp. , 801 S.W.2d 841, 850 (Tex. 1990) (Phillips, C.J., dissenting) ("The inquiry, therefore, is whether 'the invalid part is so intermingled with all parts of the act as to make it impossible to separate them, and so preclude the presumption that the Legislature would have passed the act anyhow.' " (quoting Sharber v. Florence , 131 Tex. 341, 115 S.W.2d 604, 606 (1938) )); see also Anderson v. Abbott Labs. , No. 3:11-CV-1825-L, 2012 WL 4512484, at *6 (N.D. Tex. Sept. 30, 2012) (discussing severability in context of preemption).


Neither does the Angeloff court refer to the <mask> discussion of Christian (supra). The court, however, distinguishes between the contract “as evidence of the authenticity and reality of the separation” (Angeloff v Angeloff, 86 AD2d 974, 975, supra) and its economic elements which form the gravamen of Mrs. Angeloff’s attack. “Even if rescission of the agreement was found to be warranted, it would still retain its vitality as providing evidence of the primary basis for a conversion divorce” (86 AD2d, at p 975) particularly where Mrs. Angeloff “is as desirous as defendant to terminate this marriage, albeit on grounds other than conversion” (86 AD2d, at p 975).


Defendant was charged, in each of five separate informations, respectively, with placing a sign advertising its opticians’ business on public property at five locations in the Town of Brook-haven in violation of Town of Brookhaven Code § 57A-11 (B), which prohibits commercial advertising on public property and roads. Defendant’s counsel entered not guilty pleas on defendant’s behalf and moved to dismiss the informations. Counsel argued, in the District Court as he does on appeal, that the provision under which defendant was charged did not further the Town’s stated purposes in enacting chapter 57A of the Code; that certain of the regulation’s terms and expressions are unconstitutionally vague; and that the entirety of chapter 57A, which contains the provisions regulating the location and configuration of commercial and noncommercial signs, is unconstitutional because chapter 57A impermissibly favors commercial speech over noncommercial speech. Defendant’s counsel urges that, in the absence of a <mask> (which the Town has since enacted), chapter 57A, in its entirety, must be invalidated. The District Court denied the motion and, on February 9, 2012, defendant’s counsel entered guilty pleas to the five informations on defendant’s behalf. For the reasons that follow, we find chapter 57A to be unconstitutional.


The plaintiff sought to dissolve her marriage to the defendant and to enforce a nuptial agreement that the parties had executed shorty before their mar- riage. The prenuptial agreement provided that, in the event of dissolu- tion, the parties agreed to waive any claim to each other’s separate property or to support from the other. The agreement also provided that a party who unsuccessfully challenged its enforceability would pay the attorney’s fees of the other party and contained a <mask> providing that, if any provision or provisions in the agreement were found to be unenforceable, the remainder of the agreement would con- tinue in full force and effect. The defendant filed a cross complaint, claiming that enforcement of the agreement would be unconscionable in light of certain, uncontemplated events during the marriage, including the birth of the parties’ three children, the destruction of the defendant’s house by fire, the destruction of a yacht club, in which the defendant had an indirect ownership interest, due to a natural disaster, and the failure of a business from which the defendant derived his primary source of income. The trial court found that, although these events were not contemplated, they did not render enforcement of the agreement unconscionable. The court found, however, that enforcement of the attorney’s fees provision would be unconscionable insofar as it would financially cripple the defendant. The trial court rendered judgment dissolving the parties’ marriage, striking the attorney’s fees provision from the prenuptial agreement and concluding that the remainder of the agreement was enforceable. The defendant appealed, claiming that the trial court incorrectly determined that the occurrence of the uncon- templated events during the parties’ marriage did not render enforce- ment of the agreement unconscionable at the time of dissolution. Held that the trial court correctly determined that enforcement of the parties’ prenuptial agreement was not unconscionable in light of all of the rele- vant facts and circumstances: the fact that events arose during the marriage that were beyond the parties’ initial contemplation did not establish that enforcement of the prenuptial agreement would be uncon- scionable, and, although the defendant claimed that the children were entitled to continue the lifestyle to which they were accustomed before the dissolution, the children were being supported by the plaintiff at the same standard of living they enjoyed before the dissolution, the defendant conceded that, as a noncustodial parent, he was not entitled to child support, and there was nothing in this state’s statutes or case law to suggest that public policy required that a noncustodial parent receive postdissolution support for the sole purpose of ensuring that he or she has the ability to provide for the children of the marriage in the same manner as the custodial parent, as a regulation (§ 46b-215a- 5c (b) (6) (B)) setting forth the criteria for deviating from this state’s child support guidelines expressly contemplates that, after dissolution, parents may have an extraordinary disparity in income; moreover, the defendant had significant assets at the time of the dissolution, nothing in the record supported the conclusion that he was incapable of earning an income, it was not unreasonable to expect the defendant to obtain employment to replace the income that he lost from the failed business, and there was no evidence that the defendant gave up any income earning opportunities as a result of his marriage or the births of the children, or that he made significant contributions to family life, for which it would be unfair not to compensate him; furthermore, it was not inconsistent for the trial court to conclude that it would be uncon- scionable to enforce the attorney’s fees provision in the agreement on the ground that enforcement of that provision would financially cripple the defendant while also finding the remainder of the agreement enforce- able, as the agreement’s severability clause contemplated the possibility of enforcement of certain provisions in the agreement but not others. Argued May 3—officially released November 17, 2021*


Given the existence of an applicable <mask>, the court finds that the parties have expressed their intent to be bound by the remaining provisions of the Compact, in the event of the invalidation of a particular clause. This determination is buttressed by the presence of an exception for paragraph 3, the provision prescribing the types of gaming the Seneca Nation can conduct; in other words, all other provisions may be severed.


The Aanderuds argue that, as in Baker , the SPPA's severability provision renders the delegation clause ambiguous because the severability provision *894indicates that a court, and not just an arbitrator, might find the arbitration provision unenforceable. We agree with Vivint Solar that this does not create an ambiguity. In contrast to the arbitration provision in Baker , the arbitration provision here expressly states that any disputes, which include those over the scope and applicability of the arbitration provision, are to be resolved through binding arbitration except those within small claims court jurisdiction. Since arbitration is not at issue in a small claims court action, the small claims court can only find unenforceable provisions of the SPPA other than the arbitration provision. Thus, when the <mask> provides for severance of any provision of the SPPA if it is "held to be invalid, prohibited, or otherwise unenforceable by an arbitrator or court of competent jurisdiction," the court being referred to is the small claims court, which is not empowered to determine the scope or applicability of the arbitration provision.3 *237The Aanderuds also argue the clause in the arbitration provision that allows for the parties to seek "provisional remedies in aid of arbitration from a court of competent jurisdiction" is inconsistent with a delegation of arbitrability issues to the arbitrator. We disagree. Under this provision, the court is not determining whether the arbitration provision is invalid or unenforceable; instead, it allows a court to issue a provisional remedy in connection with an arbitrable controversy only on the ground the award to which the applicant may be entitled may be rendered ineffectual without provisional relief. (§ 1281.8, subd. (b); Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1247, 200 Cal.Rptr.3d 7, 367 P.3d 6 [provisional relief clause permits parties to arbitration to seek provisional remedies during the pendency of the arbitration.].)4 Since provisional remedies can be issued without invading the province of any issues delegated to the arbitrator, the provisional remedy clause does not create an ambiguity as to whether arbitrability will be determined by the arbitrator.


An issue that is not directly addressed in the cross motion but which was discussed by the wife at great length at oral argument is whether the entire separation agreement must fall if the no-divorce clause is void and unenforceable. It is the wife’s position that if the court strikes the provision, then it must strike the entire agreement. The wife’s argument' is unavailing. First, the agreement contains a <mask> (art XVIII, para 18 [G]). Second, case law makes clear that when a clause in a separation agreement is voided, it can be severed and the rest of the agreement may stand. (P.B., 19 Misc 3d at 192, citing Jessup v LaBonte, 289 AD2d 295 [2d Dept 2001]; Taft v Taft, 156 AD2d 444 [2d Dept 1989]; Seligman v Seligman, 78 Misc 2d 632 [Sup Ct, Kings County 1974]; Hummel v Hummel, 62 Misc 2d 595 [Sup Ct, NY County 1970].) Third, Christian v Christian, on which both parties rely, holds that courts must, to the greatest extent possible, defer to separation agreements. (42 NY2d at 71-72.) Here, both parties bargained for this agreement and both parties had lawyers during negotiations. The fact that one paragraph in the 39-page agreement is deemed to contravene public policy does not warrant striking the entire agreement. Therefore, the court finds the rest of the agreement is valid and remains enforceable.


See also Barr v American Ass’n of Political Consultants, Inc, 591 US ___, ___; 140 S Ct 2335, 2350-2351; 207 L Ed 2d 784 (2020) (plurality opinion) (“From Marbury v. Madison to the present, apart from some isolated detours mostly in the late 1800s and early 1900s, the Court’s remedial preference after finding a provision of a federal law unconstitutional has been to salvage rather than destroy the rest of the law passed by Congress and signed by the President. The Court’s precedents reflect a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a <mask>.”); Seila Law LLC v Consumer Fin Protection Bureau, 591 US ___, ___; 140 S Ct 2183, 2209; 207 L Ed 2d 494 (2020) (plurality opinion) (“Even in the absence of a severability clause, the ‘traditional’ rule is that ‘the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted.’ ”) (citation omitted). These general principles include, among others, the presumption that statutes are constitutional, that the Legislature intended its enactment to be constitutional, and that legislation should not be declared unconstitutional “except for clear and satisfactory reasons.” 2 Singer, Sutherland Statutes and Statutory Construction (7th ed, November 2020 update), § 44:1.


. The parties agreed in the stipulation of settlement that their “Agreement is entered into and is to be governed by Section 236, Part B of the Domestic Relations Law of the State of New York, commonly known as the Equitable Distribution Law.” (Notice of motion to dismiss, exhibit D, stipulation of settlement at 3 [second “Whereas” clause].) The stipulation also contains a <mask> by which the parties agreed that if any provision is declared illegal or invalid, the remainder of the agreement shall continue in full force and effect.


*304The intent of a separation of insureds provision, also referred to as <mask>, is to " 'provide each insured with separate coverage, as if each were separately insured with a distinct policy, subject to the liability limits of the policy.' " ( Safeco Ins. Co. v. Robert S. (2001) 26 Cal.4th 758, 772, 110 Cal.Rptr.2d 844, 28 P.3d 889 ( Safeco ).) California case law considering the effect of severability clauses on exclusionary provisions is limited. (See Safeco, supra, 26 Cal.4th at pp. 767, 772, 110 Cal.Rptr.2d 844, 28 P.3d 889 (conc. & dis. opn. of Baxter, J.)) To the extent such authority exists, no California cases discuss the applicability of a professional services exclusion on an additional insured in a policy with a severability provision. However, a few cases from other jurisdictions have concluded additional insureds were entitled to coverage where the named insureds provided professional services and the additional insureds did not provide any such services.


The Governor and the State (collectively, the State) contend that plaintiffs lack standing to sue, that the action is premature, and that the Seneca Nation is an indispensable party in whose absence the suit cannot continue. On the merits, the State and the Town contend that the Compact is consistent with the MOU, that a provision in the Compact can be construed to permit the *652Seneca Nation the authority to choose to operate a casino, with the Governor’s agreement, on property purchased by them anywhere in Erie County, and that the delegation of such discretion was ratified by the Legislature upon the Governor’s certification to it on August 18, 2002. With respect to the relief sought by plaintiffs, the State and the Town contend that such relief requires reformation of the Compact, which remedy they contend is barred by the Compact’s <mask>, by the absence of the Seneca Nation as a party, and by the doctrine of federal preemption.


While defendants do not concede that the legislative veto is unconstitutional, they claim that, even if it is, the remainder of the Enabling Act may be enforced in its absence. Whether or not an offending provision may be severed from the remainder of the statute requires an examination of both legislative intent regarding the severability and whether the remaining provisions of the statute can function in accordance with the legislative scheme. (People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48 [1920]; Matter of Westinghouse Elec. Corp. v Tully, 63 NY2d 191 [1984].) While a comprehensive <mask> may give evidence of the legislative intent regarding severability, a provision will not be severed if the remaining provisions pervert the Legislature’s intent in the enactment of the statute. (CWM Chem. Servs., L.L.C. v Roth, 6 NY3d 410 [2006].)


section 215 not only does not expressly encompass “all” governmental records (it simply permits orders requiring production of “tangible things” in general), it also includes no express repeal of any federal statute pro- hibiting disclosure of such information. Similarly, section 215 contains no language like that identified in this Office’s 1999 opinion on the relation- ship between the immigration disclosure provision and the Census Act’s confidentiality provisions, in which we noted the absence of express language such as “notwithstanding any provision of law . . . [this provi- sion provides for the disclosure of information] without restriction” that could indicate an intention to override the longstanding statutory protec- tions for census information possessed by the Department of Commerce. IIRIRA Opinion at *5. The PATRIOT Act does include a <mask> requiring that PATRIOT Act provisions be given “maximum effect” if deemed invalid or unenforceable in part or as applied, but this provision does not indicate congressional “intent that [section 215] be construed broadly to give it maximum effect,” as the National Security Division has suggested to us in its views. The full text of this provision states: Any provision of this Act held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be con- strued so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable from this Act and shall not affect the remainder thereof or the application of such provision to other persons not similarly situated or to other, dissimi- lar circumstances. PATRIOT Act § 2 (reprinted at 18 U.S.C. § 1 note (2006)). By its plain terms, this provision applies only when PATRIOT Act provisions are “held to be invalid or unenforceable” in whole or in part (emphasis add- ed); it does not otherwise establish any special rule of construction for the PATRIOT Act or manifest an intention to repeal, absent judicial invalida- tion, any provision of prior law. See also, e.g., 147 Cong. Rec. 20,685 (2001) (section-by-section analysis of PATRIOT Act conference report included in the record by Sen. Leahy describing this provision as “provid[ing] that any portion of this Act found to be invalid or unenforce- able by its terms, or as applied to any person or circumstance, shall be


The question then is whether the unconstitutional portions may be severed from the constitutional portions. Absent a <mask>, “the burden is on the [legislative body] to show that the unconstitutional provisions are severable . . . [t]he critical issue [being] whether the legislation would have been enacted if it had not included the unconstitutional provisions” (National Adv. Co. v Town of Babylon, 900d 551, 557 [2d Cir 1990]). Where “the constitutional and unconstitutional provisions [are] inextricably interwoven” an inference may be drawn that they are nonseverable (id.; see McKinney’s Cons Laws of NY, Book 1, Statutes § 150 [d]). Although the severability clause did not exist at the time of the instant offenses, we may nevertheless consider whether the unconstitutional portions may be severed from the constitutional parts (e.g. Lamar Adv. of Penn, LLC v Town of Orchard Park, N.Y., 356d 365, 375 [2d Cir 2004]), and we conclude that they cannot be severed. In light of the ubiquitous use of the language of limitation quoted above and the relative absence of media of expression for noncommercial speech, it is impossible to sever so much of chapter 57A as permits “commercial favoritism” while retaining the remainder. The chapter’s provisions are so closely interwoven that removing them wholesale would render the regulatory scheme incoherent and would amount to a judicial rewriting of a legislative scheme, which the courts do not favor (National Adv. Co., 900d at 557).


October 29, 1953, they made a further written agreement complementing their agreement of September 21, 1953, including therein escrow provisions conditioning payments upon delivery by the respondent to the petitioners of writings, such as assignments and patents, etc., by December 15, 1953, making time of the essence. Since then there has been <mask> of both agreements on both sides, including payment of $13,500 of the original escrow fund to the respondent. On the *525respondent’s notice of arbitration as to a $5,000 payment which became due on March 30, 1958, under the agreement of September 21,1953, the petitioners seek this stay on the contention that there is no agreement for arbitration because there has not been total compliance with three of the seven items in the second agreement which were to have been fulfilled by December 15, 1953. Paragraph Fourth of the latter agreement conditions the existence of the first agreement upon compliance with the conditions which have been fulfilled in part.


‘ ‘ We assume that the beneficiary of a right so to sue may not enforce it .to the prejudice of a municipal corporation by which the right is created. The intention to make such a bond a means of securing compensation to those whose labor or *112materials are to forward performance of a contract for public work is undoubtedly subordinate to the self-protection which is the first objective of the municipal corporation in taking the bond. It seems clear that a cause of action cannot be established in a case like this unless the municipal corporation has received upon a contract for public work the <mask> which the bond of its contractor is primarily intended to secure. * * *


The facts found by the referee constitute a complete delivery of the large ■shipment of bottles. They were shipped as soon as possible after the receipt •of the order of August 28th; and, if any unusual delay occurred in their transportation to Rochester, it would seem to have been due to the interference of the defendant in the attempt to prevent their delivery. The fact that this shipment did not complete the quantity of bottles contracted for is no defense to this action. An elaborate argument is made on the part of the defendant in support of the proposition that “the contract was entire, and called for entire performance; and that until such was made or tendered there was no liability on the part of the defendant. ” The proposition is quoted from the opinion of the court in the case of Catlin v. Tobias, 26 N. Y. 217; and that case, ■and the cases of Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. Rep. 12, and Champlin v. Rowley, 13 Wend. 258, 18 Wend. 187, are relied upon as sustaining the application of the doctrine to this ease. We find the case strongly distinguished from the cases cited, and from any other ease to which our attention has been called, in which the doctrine of. an entire contract has been applied. Aside from the fact that this was a contract for the manufacture of goods, and not for their sale merely, upon which stress is laid by counsel for respondents, we find in the particular terms of the contract ample grounds for •distinguishing this from the cases referred to. In Norrington v. Wright, *442supra, the contract was for the sale of 5,000 tons of rails, and the contract: itself specified the time and the amount of each shipment, viz., about 1,000-tons each month, beginning in February, and all to be shipped before August.. The court say they are of “the opinion that the plaintiff’s failure to make such, shipments in February and March as the contract required prevents his maintaining this action.” So, also, in Catlin v. Tobias, supra, the contract expressly prescribed the time within which all the goods should be delivered, viz., within three months from the date of the contract; and in Champlin v.. Rowley, supra, the court held, on the terms of the contract, that the delivery of the entire quantity of the hay sold was a condition precedent to the payment of the price. In this case, on theotherhand, thegoods were, by the terms, of the contract, to be delivered only as ordered by the defendant. The language of the stipulation is: “Tobe delivered in Rochester, N. Y., in car-loads, free of all freight, to us, and when we direct, and within one year from this-date. ” This is plainly a contract for the delivery of goods by installments, the time and quantity of each delivery to be -determined by the order to be given-by the defendant. The addition of the words, “and within one year from this, date,” did not give the plaintiff the right to deliver thegoods faster than they were called for; but must rather be considered as a stipulation on the part of the defendant to call for all the goods within the year. This contract the-plaintiffs have fully performed. They delivered all the goods that were called for, and as they were called for, within the year; and at the close of the year, having received no further orders, notified the defendant that the remainder-of the goods manufactured were held subject to its orders; that they would, ship all goods ordered before August 30th, but, if not ordered before that date, they would be stored at the defendant’s risk and charges. The order which-the defendant gave in response to this notification was impossible of execution, according to its terms. It was probably intended as a snare. Fío part-of the-goods could have been shipped after the receipt of that order, on the evening of the 28th of August, so as to have reached Rochester on the 30th. The plaintiffs, however, proceeded to comply with the order as nearly as possible, and shipped nearly 4,000 gross of bottles on the 29th and 30th. It was after that shipment, and before any portion of thegoods had reached their destination, that the plaintiffs received the final communication from the defendant, to the effect that it would receive no goods delivered in Rochester after August 30th, except in such quantities as should be ordered after that time. If nothing had occurred before the receipt of this dispatch to indicate the determination of the defendant not to accept performance of the contract by the plaintiffs, this would have been quite sufficient to absolve the latter from any further attempt to perform or tender of performance. FTo further order for-bottles was ever given by the defendant. Upon this case we cannot doubt: the correctness of the findings of the referee, which in effect credit the plaintiffs with a <mask> of the contract on their part, so far as they were required or permitted to perform it.


Secondly. Though the literal ierms of the condition have been fully complied with according to the foregoing view, yet as we are bound to look to its substance and effect upon the rule of construction already referred to, we admit the performance fails if the estate in fee of the moiety is encumbered by annuities and legacies so as seriously to diminish the value of it. Contingent charges, however, upon this rule of construction should be laid out of consideration, if it is affirmatively shewn that they will not with reasonable certainty fall upon the estate. A literal or prima facie performance being established, it would seem to devolve upon those disputing it, to produce the evidence repelling a subtantial performance. A remote possibility of a charge, if sufficient for this purpose, may undoubtedly be rebutted. It may or may not affect the interest or value of the estate, and therefore is necessarily under the control of the facts of the particular ease. The funds of the testator may be so large and ample, that the contingent charge of the legacies and annuities in this case would not, in the market, or in fact in the slightest degree, diminish the value of the moiety. This was asserted to be the situation of the funds of’ the estate in this case, and proof of it was offered by the counsel for the defendant. The evidence was proper; and if the fact could be established, looking at a <mask> of the condition upon which the estate of. the defendant depends, I am of opinion it ought to have been received.


The departures from the required thicknesses under the contract involved, so far as said forty-four slabs are concrened, were substantial. The measurements of these removed slabs indicated 1,760 feet of defective pavement. This was, in my judgment, not such a performance of the contract as to justify full recovery. It may be claimed that to hold that a deficiency of twenty-six thirty-seconds of an inch is not <mask> is a purely arbitrary action, but the line must be drawn somewhere, and, to repeat, each case of this nature must be determined according to the facts disclosed. I think that the State had the right, under this contract, to order the removal of portions of the pavement which were substantially defective, and that right is not affected by the facts that more material than necessary was placed in the entire pavement or that the average deficiency of the whole pave*344ment from the contract requirements was, as claimed, less than one-third of an inch.


Each case of this character, of course, has to be determined on its own particular facts. We are not attempting to lay down any general rule to govern in cases similar to this. All we desire to be understood in holding here is that we are not satisfied from the evidence before us that a sufficient amount of this concrete was laid thinner than seven inches to enable us to properly find that the work done by this claimant was not a <mask> of his contract.


I am of the opinion that Special Term improperly applied the <mask> test to the contract herein. Defendant’s recovery of a judgment for damages to its press did not preclude plaintiff from asserting its present cause of action for the balance of the contract price. Where property is delivered in a damaged condition due to a carrier’s negligence, the carrier may recover freight charges either in a separate action or by counterclaiming therefor in an action brought by the owner to recover for damages to his goods (see Schwinger v. Raymond, 83 N. Y. 192; 7 N. Y. Jur., Carriers, § 164). Where goods are destroyed there is, of course, no right to recover freight charges (Dunham v. Bower, 77 N. Y. 76).


By no stretch of the imagination can plaintiff’s track record under the separation decree be characterized as <mask>. It bespeaks of, and constitutes, substantial refusal to perform financial responsibilities under the decree. And, those responsibilities, particularly in a fragmented family, were and are of grave import to the over-all decree impact. Plaintiff has not sought to deny the defaults, instead contending that his compliance with the separate bed and board provision is enough.


The <mask> doctrine originated and is still mostly used in the context of construction contracts. See Vance v. My Apartment Steak House, Inc., 677 S.W.2d 480, 482 (Tex. 1984) ; Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 164 (Tex. 1982) ; RAJ Partners, Ltd. v. Darco Constr. Corp., 217 S.W.3d 638, 643 (Tex.App.-Amarillo 2006, no pet.) ; Beard Family P'ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 844 (Tex.App.-Austin 2003, no pet.) ; see also Ten-Booms v. Obregon, No. 03-09-00713-CV, 2011 WL 2162884, *7 (Tex.App.-Austin June 3, 2011, no pet.). However, substantial performance can also be used as a defense to other breach of contract claims. See Smith v. Smith, 112 S.W.3d 275, 279 (Tex.App.-Corpus Christi 2003, pet. denied) ; see also Avnsoe v. Square 67 Dev. Corp., 521 S.W.2d 874, 874-75 (Tex.Civ.App.-Eastland 1975, no pet.) (substantial performance as defense); Cotherman v. Oriental Oil Co., 272 S.W. 616, 618 (Tex.Civ.App.-Amarillo 1925, no writ) (same); Adams v. Tri-Continental Leasing Corp., 713 S.W.2d 152, 153 (Tex.App.-Dallas 1986, no writ) (same). In determining substantial performance, there must be no willful departure from the terms of the contract and no omission of essential points of the project. Smith, 112 S.W.3d at 279 ; see Cotherman, 272 S.W. at 619 ;


The “ <mask> ” measure of disability is followed in many other jurisdictions. The United States Court of Appeals for the Fifth Circuit, in Standard Acc. Ins. Co. v. Bittle (36 F. 2d 152, 154) defined total disability as follows: “ A disability is total if it prevents the party suffering it from performing acts necessary to the prosecution of his business in substantially the customary and usual manner, and does not mean a state of absolute helplessness or inability to perform, at peril to health, some of the acts required in the conduct of a business or occupation.”


A close examination of Domestic Relations Law § 170 (5) and (6) reveals that when the Legislature enacted said subdivisions, the identical requirement was imposed of "substantial * * * performance] with all of the terms and conditions” in regard to judgments of separation and separation agreements. While there is an abundance of case law on what is <mask> with all of the terms and conditions of separation agreements (i.e., Berman v Berman, 72 AD2d 425 [1st Dept 1980], affd 52 NY2d 723), there is none regarding substantial performance with judgments of separation. However, in view of the identical language and intent of the Legislature, this court concludes that the case law on substantial performance of separation agreements applies equally to judgments of separation. In discussing substantial performance with a separation agreement, the court in Berman (supra, p 428) stated: "they are aimed at substantial noncompliance and nonperformance of major mandatory decretal duties imposed upon plaintiff as conditions of the separation *30(Failla v Failla, 81 Misc 2d 959). It is with these major provisions, such as alimony and child support, that the statute requires compliance for at least one year”, and further stated (p 429): "The inclusion of the term 'substantially performed’ in the statute had a manifest purpose to insure that the essentials of the agreement were complied with. 'Substantially’ plainly intends to avoid the need to prove literal compliance. However, the major undertakings inherent in the agreement, the obligation to pay alimony and child support, are manifestly terms and conditions which are the very foundation of the agreement”, and further: "The obligation to comply with the support provisions, the essentials of the agreement, must be met in order to utilize the agreement as a basis for judicial relief. A party who disregards the essence of an agreement and his obligations under it should not be permitted to use the agreement to obtain affirmative judicial relief against the other party.” (See also, Bock v Bock, 121 AD2d 672 [2d Dept 1986].)


The Court of Errors held, that the verdict was imperfect, that from the finding of the jury, it did not necessarily follow that a cause of forfeiture existed, as it did not appear but that this diminution in width was wholly immaterial in respect to the object for which the opening and drawbridge were required; nor that any private or public injury had resulted from the diminution ; nor but that there had been a <mask> of the conditions upon which the grant was made, which is all that can be required in the performance of a condition subsequent, and accordingly the court reversed the judgment of the Supreme Court, and awarded a repleuder.


Then again in relation to “ conditions annexed by operation of law,” a similar reasonable latitude is given. One of those annexed to every estate in dower and curtesy is that the tenant do not waste, and by common law the estate was forfeited for breach of that annexed condition. Coke Lit. 233. But-if the waste be caused by tempest or the act of God, that is no breach. Neither does the tenant incur the penalty of waste when the amount is very small, or under the value of 40 pence. ' Coke Lit. 540. In a very recent decision of our own supreme court, this general doctrine is lucidly stated by the chief justice in delivering the opinion of the court, and is applied to corporate franchises. Speaking of corporate grants (and the rule applies with equal force to franchises granted to unincorporated individuals) he says.: “ There can be no great difficulty in ascertaining the principles that should govern conditions annexed to them. The analogous cases of individual conditional grants will give the rule. In these, a reasonable and <mask> according to the intent of the grantor is required.” Shep. Touchstone, 133. 15 Wend. R. 291. In case of conditions subsequent, if impossible to be performed or rendered impossible by the act *586of God, the grantee is excused and the estate is absolute. 2 Bacon’s Abr. tit. Condition. Shep. Touchstone, 133, 157. So if waste be committed *by a stranger, it shall not be a breach of the condi- [ *587 ] tion of the lease. 2 Bac. Abr. 652. The whole law on the subject will be found reasonable. The People v. The Kingston and Middletown Turnpike, ante,p. 193. Now in all these several cases of condition above mentioned, to give any effect to the rule of law, it must follow that no judgment can be rendered against the defendant upon verdict, unless that verdict shew to the court, at least generally and presumptively, the fact not merely of a breach of the letter of such subsequent condition, but of its intent and meaning ; or, in other words, that it was violated according to its legal construction so that judgment might be rendered “ according to the right of the matter,” as our statute phrases it. This would be shewn by a general verdict against the defendant, where the form of action and the pleadings are such that the general finding shows positively that the cause of forfeiture or right of re-entry had been directly proved. It may also be shewn by the special finding of such facts as the court adjudge to amount to a substantial breach of condition. But if the record present only the finding of particular facts which do not shew affirmatively any certain and substantial breach of condition, but merely a possible and contingent one, such as might or might not amount to legal cause of forfeiture, no matter whether the verdict be in form general or special, whether it submits the facts in technical form to the legal judgment of the court, or is simply responsive (as here) to the issue; I do not see how, consistently with the principles and authorities above stated, such a verdict can support any judgment against the defendants.


The principal exception urged on this appeal is to this refusal of the court to charge defendant’s request. It is contended that the contract was an entirety, that it implied a covenant for fidelity and honesty on the plaintiff’s part, and that full performance in those respects, as well as in point of time, was a condition precedent to any right of recovery against the defendant, and that hence any delinquency on the part of the plaintiff was a complete bar to the action. I do not think this position well taken. The plaintiff had served out his full term. The defendant had accepted his services for that period. While performance is a condition precedent to a recovery, it is also well settled that the <mask> of á contract is sufficient. (Glacius v. Black, 50 N. Y., 145; Phillip v. Galliant, 62 id., 256.) I do not see why a more stringent rule should be applied to contracts of service than to others. True, it is established by authority that where a servant' is discharged for cause during his term of service, he can recover nothing, no matter how long he has served. The cases cited by defendant go to this extent and are based upon the theory that the contract of service is an entirety as to the term. But none go further. There are some contracts which are unities in all their essential elements. Such a one is a physician’s attendance upon a patient during a single attack of illness. A recovery for services is a bar to an action for malpractice or vice versa. But the employment of an ordinaiy servant is an entirety in no sense except as to its term. The day’s duties well done, are not affected by the performance of the duties of the next. The rule as to term is sufficiently stringent and should not be extended. The servant contracts for attention and diligence as well as honesty. He might have been discharged for injuring the harness by his carelessness, but it certainly' should not be that, having served his whole time, he should forfeit his whole wages when the master can be indemnified by recouping his loss. Nor do any of the requests do charge present the point of actual dishonesty *235or of continuous fraud upon the servant’s part. The burden of the requests, though prat in many forms, is that a retention of the defendant’s money was a bar to a recovery. This was not qualified by the condition that the retention of the money should be with the intent to cheat the master, nor that the servant’s course of conduct was persistent. It was claimed that a single failure to pay over to the master was sufficient. It may well be that a continuous or habitual course of dishonesty should bar wholly a servant’s claim, though the proceeds of his fraud are less than the amount of his wages. But none of the defendant’s requests present this question, nor indeed do they ■ present the question 'of any actual dishonesty.