DeeDee filed a request for order on December 5, 2013, seeking, among other things, to modify temporary child and <mask>. For reasons the parties' briefing does not reveal, the trial court did not act on that request before trial. It did, however, rule on that motion after trial. Its judgment, entered March 18, 2016, retrospectively modified child support and temporary spousal support for three prior periods: calendar year 2014; January 1, 2015-May 31, 2015; and June 1, 2015-December 31, 2015. Also, the trial court set permanent child and spousal support for January 1, 2016 forward. DeeDee seeks reversal of all of these determinations. For the reasons set forth below, we reverse the trial court's pendente lite spousal and child support awards for 2014, and the permanent spousal support award. We remand for further proceedings consistent with this opinion.


*169Pursuant to this section and subdivision (6), and for whatever reason, spouses may enter into a separation agreement, and upon compliance with the conditions of this subdivision either party may, upon notice to the other party, apply for a judgment converting such agreement to a judgment divorcing the parties and dissolving the marriage. This subdivision preempts the field of divorce following a separation agreement. The claim is raised that this subdivision permits a “ <mask> ” and for this reason is contrary to the interest of the State in regulating the marital status of its residents. Whatever the merit of this claim, the claim must fail because of the language of this subdivision. It is the purpose of the Legislature by this subdivision to require a 11 cooling off ”-period allowing the parties to examine their new status and hopefully lead to reconciliation, short of a separation agreement being converted to a judgment of divorce.


Nor is a different conclusion required by the ruling in Averbuck v. Averbuck (270 App. Div. 116) that a spouse is not precluded from questioning the validity of a sister State decree based on an appearance in the granting court which was induced by fraud, coercion or duress. Although there is here presented an instance of the too frequent, questionable practice of a consensual divorce arranged by an attorney retained by one spouse but purporting to act for both, there is not a scintilla of evidence that “ Elizabeth A. Cannon ” was deceived or forced to sign the formal paper necessary for procurement of the <mask> both spouses then desired. The record is clear that she knowingly co-operated toward her husband’s procuring a divorce in some State of easy requirements, though she may have later regretted her acquiescence, either because still fond of respondent and resentful of his speedy remarriage or because she had come to realize the disadvantages and financial burdens of a divorced mother of two young children.


The court is also required to consider the non-monetary contributions that the parents will make toward the children’s care and well-being. In this matter, both parties make tremendous contributions to the children’s care and well-being. Due to the joint <mask> agreement, both parties are involved in decision making for the children as well as taking the children to medical and dental appointments and extracurricular activities. They are involved with the children’s educational pursuits and are engaged in the routine day-to-day care of the children. Plaintiff’s and defendant’s love, affection and concern for their children’s well-being were evident in their demeanor during trial. Neither has shown there is any breakdown of communication.


Eliza and Helen each expressed the desire to live with both parents and both said they were satisfied with the present scheme of <mask>. These views are consistent with the children’s love for both parents, and with what the plaintiff’s expert characterized as a typical childish wish that separated parents will reunite. The interviews with the children reinforce the court’s finding that neither parent is unfit and that both parents should be involved in their upbringing, but the children, at ages five and seven, are too young to guide the court on the issue of what custodial arrangement will best serve their needs.


Finally, the court may consider any other factor the court deems relevant. A primary consideration in this case is the parties’ shared parental access schedule. Although defendant suggests that the Court of Appeals’ determination in Bast v Rossoff (91 NY2d 723 [1998]) prohibits the court from considering <mask> as a factor in child support, a review of the decision suggests otherwise. In Bast, the Court held that the CSSA is applicable to joint custody cases. In its holding, the Court continued that in shared custody cases, child support must first be calculated using the three-step formula set forth in the CSSA and there is no exception carved out in CSSA for shared custody cases. Significantly, the appellate court in Bass recognized, inter alia, that


2. None of the trustees performed any of the duties essential or characteristic of a trust, during the lifetime of the father: (a) There was no record made of the transaction, either originally by the settlor or subsequently by the trustees. There was no list-made of the securities, for identification, either originally by the settlor or subsequently by the trustees. There was no unequivocal delivery of the securities as long as father and son <mask>. On such tentative basis, in the event of the death of the son, the opportunity was available to cancel out the whole transaction. The testimony shows that the surviving other trustee had practically no knowledge of the matter. In the event of the death of the father, we depend upon the interpretation of the son. Although he contends for an inter vivos trust, *393his testimony clearly favors the training of the son for the testamentary trust.


These parents divorced after a 17-year marriage. The father is a doctor and the mother is a pharmacist. They have four children, ages 19, 13, 7 and 6. The order of custody provides that physical custody of the two younger boys is shared. The daughter resides with the mother, and the oldest boy with the father. Accordingly, the mother and father have equal <mask> of two children and split custody of the other two children.


The majority of cases from other jurisdictions, however, have declined to extend child custody precepts to dog disputes. Some have been plainly dismissive (see e.g. Desanctis v Pritchard, 803 A2d 230, 232 [Pa Super Ct 2002] [<mask> of a dog, Barney, not permissible because he is personal property and as such, said arrangement would be “analogous, in law, to (custody of) a table or a lamp”]). Particularly notable is the language used in Clark v McGinnis (298 P3d 1137 [Kan Ct App 2013] *457[table; text at 2013 WL 1444421, 2013 Kan App Unpub LEXIS 305]). There, the Kansas Court of Appeals declined to award the appellant “custody” of Dinky, one of the parties’ three dogs. In holding that the “argument that child custody laws should be applied to dogs is a flawed argument,” the court observed, with the classic midwestern gift for stating the obvious, that “[o]ne relevant difference between children and dogs is that children are human beings and dogs are domestic animals” (2013 WL 1444421, *2; 2013 Kan App Unpub LEXIS 305, *7).


Defendant did not contest plaintiff’s fitness to have custody at trial. His position is that joint custody promotes close nurturing by both parents. He describes himself as stable and competent whereas he views the children’s mother as nervous, indecisive and easily frustrated. Defendant seeks joint responsibility and equal voice in the decisions affecting his daughters, as well as a continued 50-50 division of the children’s time. He maintains that the children have flourished under the <mask> arrangement and asks the court to order its continuance.


Father G.L. appeals from the juvenile court’s jurisdictional and dispositional orders establishing jurisdiction over his three children pursuant to Welfare and Institutions Code section 3001 and removing them from his custody. He challenges the sufficiency of the evidence to support the court’s jurisdictional findings based on allegations of domestic violence and marijuana abuse. He also contends the court erred in finding that the removal of the children from his custody was necessary to prevent substantial danger to them. We affirm. BACKGROUND I. Referral and Petition Father and mother A.W. (mother) have three children: sons Ka. (born 2014), Ke. (born 2016), and Ku. (born 2017). Mother also has an older son, K. (born 2010), from another relationship.2 Mother and father <mask> of Ka., Ke., and Ku. under a 2019 family law order, which awarded mother primary physical


*757The simple conclusion is that the child support percentages in the CSSA make no sense if "adjusted” for extensive "visitation”. This court does not conclude that the Legislature intended the court to apply the support percentages blindly. Rather, where there is extensive time sharing the court must look at the totality of the circumstances in both homes rather than rely on the percentages. The decision to view the totality of the circumstances, or the "factors” in Domestic Relations Law § 240 (1-b) (f) (1)-(10) is not inconsistent with the cases. In Holmes v Holmes (supra), the majority found the CSSA to apply to <mask> but seemed to suggest that the Hearing Examiner correctly refused to adjust for time sharing. On the other hand the dissent concluded that the CSSA did not apply because one parent can always be designated as the primary custodian. The dissent would then use the "factors” to reduce child support.


The June 2017 dispositional report recommended that the petition's allegations be sustained, the petition be dismissed, and mother, who was in the process of divorcing father, be awarded sole custody of Daniela. Mother stated that she believed stepdaughter "100 percent" and had "no doubt" that the allegations of sexual abuse were true. Father continued to deny the allegations and said he did "not know why [stepdaughter] would lie," though he speculated that she was aware his and mother's "relationship [was] disintegrating" and might be taking mother's side. He opposed the Agency's recommendations and expressed a desire for <mask> of or visitation with Daniela. Although Daniela had stated during her CASARC interview that she would be "sad" if separated from father, she now said she did not want visits with him.


A pro rata reduction based on visitation time is not necessarily related to a reduction in the costs of support. The formulas often do not take into consideration the generally accepted fact that <mask> does not reduce the costs in either household but actually increases the total child-related costs that must be borne by both parents. That is, there is no statutory recognition that shared custody necessitates duplication of costs such as housing and clothing and increases the need for transportation expense so that the total required to be expended for the children is generally in excess of the CSSA mandated percentage of the joint income. These increased costs has led one researcher to conclude that joint custody is workable for parties with joint income "in the upper-middle income brackets” but is "out of range for couples with modest income” (Reichler, New York Child Support Manual, at 35-3, 35-7 [1993]). For that reason States such as Colorado increase the basic child support computed under the regular percentage formula by an additional 50% to reflect the increased total costs caused by duplication, before applying the percentage reduction for time in excess of 92 overnights (Colo Rev Stat § 14-10-115 [10] [c]).


The analysis of the "factors” in Domestic Relations Law § 240 (1-b) (f) yields the following results. The child has no resources other than those of her parents; the parents have no substantial assets. Morton has no "special needs”. The child would have lived in a substantial upper middle income family if the household were not being dissolved. There are no tax consequences of the payment of child support. Both parents would make substantial nonmonetary contributions to the care and well-being of the child during the time she is with each of them. Both parents spend substantial time with Morton, but she spends a great deal of time with a nanny who travels from house to house with her. Both parents are attorneys and have no educational needs. As noted the income of the parties is *758roughly equivalent. The expenses Father incurs "in exercising visitation” are not "extraordinary.” Nor does the parties’ agreement discuss "extended visitation.” There are however expenses for "routine and essential services” which have traditionally been excluded from consideration under Domestic Relations Law § 240 (1-b) (f) (9) (see, Matter of Pandozy v Gaudette, 192 AD2d 779, 780 [3d Dept 1993]; Matter of Deborah D. v Theodore G., 149 Misc 2d 299, 304 [Fam Ct, Columbia County 1990] [Peters, J.]). In a <mask> case it is, however, reasonable and appropriate to consider the expenses of the child incurred by each of the parties as one of the "any other factors” referred to in Domestic Relations Law § 240 (1-b) (f) (10), in order to find a number that is just and appropriate. Thus, for example, the court is aware that Father purchased a two bedroom apartment which is larger than his own needs warrant so as to provide space for Morton and her clothing. The court has considered the net worth statements of the parties, which reflect their expenses for Morton, as well as the testimony at the trial. Based on the totality of other circumstances the court fixes the child support to be paid by Father to Mother at $750 per month. Further Father is to bear 48% of costs of child care and 48% of the private school and health care costs for Morton.


showing that in April 2018, after Mother failed to return the children to Father for his custodial time, she and the children were involved in a rollover car accident that resulted in ambulance transportation and emergency medical care. During her trial testimony, Mother confirmed she returned the children to Father nine days later. The record includes written communications showing Mother claimed to Father their oldest child, who had sustained a laceration to the arm in the accident, had been injured by falling off a bicycle. At trial, Mother explained she did not tell Father about the vehicle accident because she knew the healthcare provider would provide necessary information to Father. Father testified he did not learn the details about what happened to his children until he received their medical records for the accident four months later. Father testified Mother had not shared information about the accident despite his repeated attempts to communicate with Mother. Father also presented evidence Mother did not allow him to be with his children during Father’s Day, Thanksgiving, and one of the children’s birthdays even though the days had occurred during his custodial time. Father also testified that Mother did not comply with court orders to allow Father to have visitation calls with the children. Mother admitted at trial to violating on several occasions the court’s temporary order for <mask> of the children. At the conclusion of the fourth day of trial in November 2019, the trial court entered a minute order denying “[Mother]’s Request for Order as her request to relocate to San Luis Obispo.” The minute order also found “it [wa]s in the best interest of the minor children” for the court to “order[] joint legal custody of the minor children, with primary physical custody awarded to” Father.


Viewing the evidence in the light most favorable to the judgment, the trial court reasonably could have concluded that maintaining supervised visits and limiting Connie's periods of possession were the minimal restrictions necessary to protect the children's best interests. The record reflects that Connie displayed an inability to follow court orders grounded on the children's best interests, secreted the children *133from Cliff when she <mask> with him, and attempted to alienate the children from Cliff. Alienation of a parent can be a guiding consideration in making possession and access determinations. See , e.g. , In re J.W.H. , No. 14-09-00143-CV, 2010 WL 1541679, at *6-7 (Tex. App.-Houston [14th Dist.] Apr. 20, 2010, no pet.) (mem. op.) (affirming trial court's modification order changing which parent had primary custody based in part on evidence parent who originally had primary possession had repeatedly attempted to interfere with other parent's periods of possession); In re Marriage of Chandler , 914 S.W.2d 252, 254 (Tex. App.-Amarillo 1996, no writ) (affirming order divesting parent of managing conservatorship due in part to interference with other parent's relationship with child). Both of the children's counselors testified positively about supervised visitations, and V.H.'s counselor explicitly stated that the "structure of the supervised visits provides a level of comfort and stability" for V.H. See P.A.C. , 498 S.W.3d at 220 (no abuse of discretion to place restrictions on possession and require visitation remain supervised when mother's mental health status was "uncertain," coupled with concerns that mother would not follow court orders and might damage children emotionally by demeaning their father when alone in her custody).


had suggested they “try to resolve [their] issues” regarding the <mask> of their son and he thought this was a good opportunity to talk. Mother refused to speak with him because it was several minutes before their scheduled exchange time. She rolled her window up as he began to speak. He knocked on the window and told her he would leave. After she rolled the window down again, he said he was there to accommodate her, and that they could exchange in San Diego per their custody agreement “if [she was] going to be rude.” When she said she would call the police, he replied “[c]all them.” He left, got gas, and then returned and exchanged their son. The police arrived and Mother gave a statement. Father stated that once the police arrived, Mother exited her vehicle and started “crying uncontrollably.” Father later approached the officer and offered to cooperate. In his response to the restraining order request, Father explained that he believed Mother was seeking a restraining order “for the sole purpose of attempting to influence the [j]udge to limit [his] time with [their] son.” He denied coming toward Mother “cursing and demanding to talk”; denied getting “into her face”; denied “bait[ing] her to a deserted portion of [the] parking lot”; and denied that he was “upset or angry.” Mother, who had filed the initial restraining order request in propria persona, retained counsel and filed a supplemental declaration in support of her restraining order request. She stated that Father “was verbally abusive” during their marriage after their son was born and “used his physicality to


Matter of Kerr v Bell (supra) appears to be the seminal authority on the subject. That case actually dealt with a "split custody” arrangement, where one parent had custody of four children and the other had custody of one child; it was not a "shared” custody case. The Court noted that both parents were "simultaneously” "custodial and non-custodial” parents. The Court, therefore, concluded, without extended discussion, that *751it would not hold the CSSA inapplicable. In Matter of Holmes v Holmes (supra), a <mask> case, the mother had physical custody of the children 60% of the time. The majority of the Third Department would not designate her the "primary custodian” rather the Court found the parents to be both custodial and noncustodial simultaneously. The Third Department majority relied on Matter of Kerr v Bell and again refused to conclude that the CSSA should not apply. The two-Justice dissent noted that in joint, or "shared”, custody the designation of "custodial parent” shifts with the child’s location. Therefore the dissent would look for the parent who had the majority of custodial time and designate that parent as the "custodial” parent for the purposes of the support statute. In both Holmes and Kerr the matter was remanded for further calculations. In Kerr the Court required the fact finder to look at each individual household rather than apportioning one fifth of the CSSA amount to one child. That of course followed from the parties’ split custody arrangement (see, Riseley v Riseley, 208 AD2d 132 [3d Dept 1995] [applying the CSSA percentages to each household in a split custody case]). In Holmes the Appellate Division offered no guidance on how the CSSA should apply (see, Florescue, Allegations of Waste, NYLJ, May 10, 1993, at 3, col 1).


“had among its objectives the assurance that both parents would contribute to the support of the children, and that the children would not ‘unfairly bear the economic burden of parental separation’ (Governor’s Program Bill Mem, Bill Jacket, L 1989, ch 567, at 1). Emphasis was to shift ‘from a balancing of the expressed needs of the child and the income available to the parents after expenses to the total income available to the parents and the standard of living that should be shared with the child’ (Reichler and Lefcourt, NY St BJ, op. cit., at 44; see also, Governor’s Approval Mem, 1989 NY Legis Ann, at 250 [‘children will share in the economic status of both their parents’]).” (Matter of Cassano v Cassano, 85 NY2d 649, 652 [1995].) To accomplish these diverse objectives, the CSSA created a system with greater uniformity that nonetheless maintained “the degree of judicial discretion necessary to address unique circumstances” (id.). Thus, when the Court of Appeals first addressed the application of the CSSA to a <mask> arrangement, it did not create a categorical definition of the “noncustodial parent,” but rather held that “fi]n most instances, the court can determine the custodial parent for purposes of *578child support by identifying which parent has physical custody of the child for a majority of time” (Bast v Rossoff, 91 NY2d 723, 728 [1998] [emphasis added]).8


The facts and adoption statutes must be considered in order to appreciate the dilemma presented by this case. The child was deliberately conceived more than two years after his parents had entered into a long-term, stable relationship. Both parents, however, have decided not to marry because they are convinced “that marriage would be harmful to their family and their relationship.” The parents have <mask> of the child; they live within a few blocks of each other. The child resides most of the time *658with his mother, but he spends a great deal of time with his father. In addition, the parents spend a great deal of time together and with the child.


"i. L.G. had resided with her from his birth until the temporary order entered on August 27, 2018. "ii. The mother left Arizona, where L.G. was born, in an effort to place distance between herself and the child's father due to his volatile behavior. "iii. In late July/early August 2018 mother re-located from Hutchinson, Kansas to Kansas City, Kansas. "iv. She complied with the temporary order obtained by an older child's father which resulted in both L.G. and his older sister residing with the older sister's father. "v. L.G. and his older sister are extremely close. "vi. The mother elected to return to live and work in the Hutchinson, Kansas area and completed the move in October 2018. "vii. The case workers assigned to the case had no objections to her household. "viii. The mother has 4 children. The oldest resides with his father in Arizona. She has primary custody of her oldest daughter. She has a <mask> arrangement of her youngest daughter. "ix. The mother has had minimal difficulty in arranging for parenting time or sharing parenting responsibilities with her other children's fathers. "x. The mother has had extreme difficulty in arranging any meaningful contact with L.G. during the time the child has been in Arizona. "xi. L.G.'s father has frequently bullied or belittled her and refused to cooperate with phone calls or video conferencing visits. "xii. The father has suggested that she 'give up' and allow his significant other to adopt L.G. "xiii. This behavior continued when the mother attempted to use text messaging to schedule a FaceTime visit with L.G."


Thus, while this court concludes that while the CSSA "applies” to <mask>, it holds that the basic support percentages should not be used in any shared custody case. The threshold for true shared custody varies by State from 25% to 35%; the maximum figure used appears to be 35% of the overnights. This case meets that standard under Mother’s or Father’s computation.


Each of the formulas used by the other States have infirmities. One of the problems with a "threshold” is that small differences in "visitation” may result in vast differences in support. For example, where there is a 25% threshold, an increase of 10%, in visitation from 20% to 30%, may well result in a 45% reduction in support (Getman, Changing Formulas For Changing Families: <mask> Must Not Shortchange Children, 10 Fam Advoc 47, 49, 54 [Spring 1988]). One commentator has noted that the complex calculations required by pro rata reductions do not produce an equitable result and are not "fundamentally fair” (Florescue, CSSA Statutes and Their Effect on Practice, NYLJ, May 11, 1992, at 2, col 6).


The other Departments have not spoken directly on the issue. (Cf., Harmon v Harmon, 173 AD2d 98, 110 [1st Dept 1992]; Matter of Isaac v Clay, 202 AD2d 1047 [4th Dept 1994].) The reported cases offer little guidance. In Harmon, a "joint custody” case, the First Department did not discuss the theoretical problems by the application of the CSSA; the Court merely noted that the mother was "primary caretaker and de facto custodian of the children.” It is interesting, but not informative, that without any description of the time-sharing arrangement, other than to note that the child "resides” with the mother, the Third Department in Nicholas v Cirelli (supra) found the mother to be "the primary caretaker and de facto custodian” since there was no "actual shared or split physical custody of a child” (209 AD2d, at 840-841). The Fourth Department shed little light on the subject when it held that child support was not due to the parent with the substantially greater income because "both parties have extensive custodial rights under the stipulated joint custody order” (Matter of Isaac v Clay, supra). In Harrington v Harrington (NYLJ, July 18, 1991, at 27, col 3 [Sup Ct, Westchester County] [Colabella, J.]) the court awarded joint custody but awarded child support *752to the mother as the "primary caretaker” relying on Matter of Kester v Kester (151 AD2d 815 [3d Dept 1989]), a pre-CSSA case. In Sally R. v Stewart R. (151 Misc 2d 307, 309 [Fam Ct, Dutchess County 1991]) the court criticized the application of the CSSA to a joint <mask> situation where the mother had "primary physical custody” and apportioned reduced child support based on the needs of the children and the proportion of needs provided by each parent. In Roy v Roy (188 AD2d 274 [1st Dept 1992]) the First Department in a split custody case rejected the application of the child support percentage of the CSSA and found the statutory formula "unjust and inappropriate”.


“[t]here will certainly be <mask> cases where the statutory formula yields a result that is just and appropriate, notwithstanding the additional time spent with the child ... Of course, there will also be shared custody cases where the statutory formula yields a result that is unjust or inappropriate. In those cases, however, the court can resort to the ‘paragraph (f)’ factors and order payment of an amount that is just and appropriate” (Bast at 729). Indeed, the Court noted, “[w]hile it reduces certain costs for the custodial parent, shared custody actually increases the total cost of supporting a child by necessitating duplication of certain household costs in each parent’s home” (id. at 730). While the Court of Appeals explicitly rejected use of a “proportional offset” formula in shared custody cases, its ruling simply directed courts to calculate child support in accordance with the CSSA. In this case, the parties share equal parenting time with the children and incur their separate expenses for the children’s basic necessities, including food, clothing, and toiletries.


The circumstances in Lee are fundamentally different from those presented here. In contrast to Lee , this is not a situation where the trial court refused to enforce a validly executed MSA because, in the court's view, the custody terms contained therein were not in the children's best interest. Rather, the trial court incorporated *139the MSA terms into the Interim Order it signed in April 2014. From April until September 2014, the parties <mask> of the children under the Interim Order.34 Thereafter, and based on events occurring after the MSA was signed and after the entry of the Interim Order-including the trial court's findings that Connie materially failed to comply with the MSA terms to the children's detriment-Cliff amended his petition to allege that a material and substantial change had occurred and the custody terms (which were incorporated into the Interim Order) were no longer consistent with the children's welfare. Cliff moved for temporary orders on parent-child issues, which the trial court granted on September 3, 2014, signing an order that day. Pursuant to these orders, the trial court removed Connie as a joint managing conservator of J.H. and V.H., and appointed Cliff temporary sole managing conservator.


Pursuant to Federal mandate every State has adopted child support standards. Yet, the child support statutes of the States show substantial variation in their application to <mask>. Some States have adopted a formula to reduce child support by the time the child spends with the "non-custodial” parent once a certain threshold is reached. For example in Colorado the threshold is 92 overnights (Colo Rev Stat at § 14-10-115 [8]). Once that 25% threshold is reached there is a pro rata reduction in support by the amount of time spent with the "non-custodial” parent (Colorado Child Support Guideline, in Rutkin, Fam Law & Prac, 22A-19 [1993]). In California under the current statute there is a complex formula in which the percentage of visitation with each parent is a factor in the amount of support in all cases (Cal Civ Code § 4055). Some States have no mechanical formulation but allow adjustments *754to the support standard amount based on the spending of "substantial amount of the time” with the other parent (e.g., Fla Stat Annot § 61.30 [11] [g]), although in Florida consecutive visitation in excess of 28 days may give rise to a temporary reduction in child support not to exceed 50% (Fla Stat Annot § 61.30 [11] [g]). In yet other States, such as Massachusetts (Child Support Guidelines, Part II-D [1]), the guidelines stated that they "are not applicable” to shared custody. That is, "extraordinary visitation” does not impact the support award (see, Wolfson & Cohen, Child Support: Finding a Fair Solution, Complete Lawyer 43, 45 [Winter 1995]).


The father also objects that some version of an offset formula was not used when determining his child support obligation in the split custody situation regarding the two oldest children. As noted above, in Bast v Rossoff (91 NY2d 723, 730 [1998]), the Court of Appeals held that the Legislature did not authorize the use of the offset formula in <mask> cases. Bast teaches that, if the CSSA formula does not produce a fair child support obligation, then only the section 413 (1) (f) factors can be used to deviate above or below the formula amount.


*298Those factors are broad enough to consider the amount of time that the children are in the care of each parent. The support magistrate correctly determined that this was both a <mask> case and a split custody case. Based on that determination, the support magistrate deducted the mother’s support obligation for one child from the father’s support obligation for the three other children. This offset, which is really just an accounting process, is the only one permitted by the CSSA. Therefore, this objection is denied.


As time went on, however, the relationship between defendant and plaintiff became strained. In October of 2008, Audria and plaintiff moved out of the marital residence with J.M. A divorce action was commenced by plaintiff against defendant in 2011. Plaintiff testified credibly that after the divorce action was commenced, defendant no longer considered her to be J.M.’s parent. Prior to this divorce, a custody case was commenced by defendant against Audria. Defendant and Audria settled their custody proceeding by agreeing to joint custody; residential custody with Audria and liberal visitation accorded to defendant.3 The plaintiff still resides with Audria and J.M., and sees J.M. on a daily basis. She testified that she brought this action to assure continued visitation and to secure custody rights for J.M. because she fears that without court-ordered visitation and <mask>, her ability to remain in J.M.’s life would be solely dependent upon obtaining the consent of either Audria or the defendant.


It is clear to this court that in New York the mere designation of the parents as "joint custodians” should not affect the outcome of the case. There is obviously no reason why the sharing of legal decision making should have any impact on the need for or amount of child support. Also as noted above even the courts which apply the CSSA to <mask> do not have any theoretical concerns when there is a clearly designated "primary physical custodian” (e.g., Nicholas v Cirelli, supra; Matter of Karen G. v Leroy G., NYLJ, Sept. 15, 1992, at 24, col 6 [Fam Ct, Queens County] [Cozier, J.]), or where the court can readily discern which parent is the de facto custodial parent (Harmon v Harmon, supra). The reality of the situation governs. When it comes to "joint custody” "the court must not be misled by nomenclature” (Reichler, NY Civ Prac: Matrimonial Actions [Matthew Bender 1993]).


In 2013, [Co-defendant] had a two-year old daughter, [Victim], from a previous relationship with [Father]. [Co-defendant] <mask> of [Victim] with [Father], but there was no formal custody agreement in place. [Co-defendant] informally communicated with [Father] and his then girlfriend, [K.E.,] about exchanging custody of [Victim]. They also communicated generally about things that were going on in [Victim's] life. Sometime in the beginning of 2013, [Co-defendant] began a relationship with [Brown]. [Father] and [K.E.] came to believe from their own observations that [Co-defendant] was staying with ... Brown on a regular basis and that [Victim] would stay there as well. Between February 24, 2013, and March 5, 2013, [Co-defendant] had custody of [Victim]. When [Father] gave custody of [Victim] to [Co-defendant] on February 24, 2013, [Victim] did not have any visible injuries beyond a slight bump on the head. On March 4, 2013, [Co-defendant] sent [K.E.] a text message stating that [Victim] had fallen off of ... Brown's porch. [Co-defendant] further stated via text message that she had sat [Victim] on a heating pad after [Victim] appeared to have a bruise from the fall. [K.E.] and [Victim]'s grandmother advised [Co-defendant] via text message to alternate heat and ice on the injury. [Co-defendant] also informed [Father] and [K.E.] of blisters on Victim's buttocks. [Co-defendant], [K.E.], and [Father] continued to text and call discussing when [Father] and [K.E.] could have custody of [Victim]. [Co-defendant] seemed to be hesitant to give over custody of [Victim]. Eventually, [Co-defendant] agreed that [Father] and [K.E.] could pick up [Victim] on March 6, 2013. [K.E.] picked [Victim] up because [Father] was at work. [K.E.] picked up [Victim] between 5:30 and 6:00 P.M. on March 6, 2013. At that time, [Victim] was quiet and was "staring off into space," which was abnormal. [K.E.] drove [Victim] home and, after further examination, noticed that [Victim] was missing some hair, had sustained some injuries to her face and side, and had burns on her buttocks. [Victim] stated that "Josh" had hurt her. [K.E.] took [Victim] to the emergency room. [Father] met them there. At the hospital, it was discovered that [Victim] had multiple small bruises on her face and spine which appeared to have occurred at different times. There were scratches on [Victim]'s face. [Victim]'s left index finger was red, swollen, and had a small lesion. She had also sustained second-degree burns to her buttocks. There were open blisters on [Victim]'s buttocks from the burns. The emergency room nurse did not believe that these types of burns could result from resting on a heating pad for less than two hours. There were areas of hair loss on [Victim]'s head with signs that the hair had been pulled out. Medical professionals confirmed that all of these injuries were consistent with physical abuse. [Victim] was very upset and "was not easily consoled." At 12:30 A.M. on March 7, 2013, law enforcement officers went to [Brown]'s residence. [Brown] came to the door and allowed the officers to enter. [Co-defendant] was also in the residence and appeared upset. [Brown] spontaneously told officers that he had put [Victim] on the heating pad, that it was all his fault, and that [Co-defendant] had nothing to do with it. [Brown] also stated that [Father] and his family had told [Co-defendant] to put [Victim] on the heating pad. In the weeks after March 6, 2013, [Victim] made more statements regarding her injuries. [Victim] stated that "Josh" had hurt her, put her in the corner, pulled her hair, and burned her "bottom." She also stated that "Josh" had hurt her finger. [Victim] would start crying "out of the blue" at bath time. Other times, [Victim] would suddenly wake up and "be screaming and crying and kicking saying he hurt me, he hurt me." (internal citations to the record are omitted).


2. Smith Family: This case is governed by the Baraby doctrine (Baraby v Baraby, 250 AD2d 201 [1998]), which holds that, in <mask> situations, the higher incomed parent is deemed the noncustodial parent for child support purposes. The father in the Smith family would owe to the mother 29% of his income for three children or $43,500. The mother would owe $8,500 to the father for the one child fully in his custody. The mother would receive a net child support payment of $35,000 and have a household income of $85,000. Similarly, the father would have a household income of $115,000. In this scenario, the father would have 35% more income than the mother with which to support the children in his care. (Tax consequences would probably narrow this disparity to around 25%.)


KAHN, J. The issue before us in this appeal is whether the trial court correctly determined that the enforce- ment of a prenuptial agreement executed by the plain- tiff, Laura Grabe, and the defendant, Justin Hokin, was not unconscionable at the time of the dissolution of their marriage. Shortly before the parties’ marriage in 2010, they executed a prenuptial agreement in which each party agreed, in the event of a dissolution action, to waive any claim to the other’s separate property, as defined in the agreement, or to any form of support from the other, including alimony. The agreement also provided that a party who unsuccessfully challenged the enforceability of the agreement would pay the attor- ney’s fees of the other party. In 2016, the plaintiff brought this action seeking dissolution of the marriage and enforcement of the prenuptial agreement. The defendant filed a cross complaint in which he claimed, inter alia, that the agreement was unenforceable because it was unconscionable at the time of the disso- lution under General Statutes § 46b-36g (a) (2).1 After a trial to the court, the court concluded that, with the exception of the attorney’s fees provision, enforcement of the terms of the prenuptial agreement that the parties entered into was not unconscionable, even in light of certain events that had occurred during the marriage. Accordingly, the trial court rendered judgment dissolv- ing the marriage and enforcing the terms of the prenup- tial agreement, with the exception of the provision requiring the party who unsuccessfully challenged the enforceability of the agreement to pay the attorney’s fees of the other party. On appeal,2 the defendant con- tends that the trial court incorrectly determined that the occurrence of the unforeseen events found by the trial court did not render the enforcement of the entire agreement unconscionable at the time of the dissolu- tion. We affirm the judgment of the trial court. The record reveals the following facts that were found by the trial court or that are undisputed. Shortly before the parties’ marriage on October 2, 2010, they entered into a prenuptial agreement. The agreement provided that it would be ‘‘governed and construed in accordance with the Connecticut Premarital Agreement Act, [General Statutes] § 46b-36a et seq. . . .’’ Under the agreement, each party waived any claim to the prop- erty of the other during the marriage. In the event of a marital dissolution, each party agreed to waive ‘‘all claims and rights to any equitable distribution of [s]epa- rate [p]roperty [of the other party, as defined in the agreement],’’ and to ‘‘any claim for temporary or perma- nent maintenance, support, alimony, [attorney’s] fees (including [pendente] lite [attorney’s] fees) or any simi- lar claim . . . .’’ In addition, each party agreed that, if either party ‘‘unsuccessfully seeks to invalidate all or any portion of [the] [a]greement or seeks to recover alimony (other than pendente lite [attorney’s] fees) or property in a manner which deviates from the terms of [the] [a]greement, then the prevailing party shall be entitled to recover all reasonable and necessary [attor- ney’s] fees and other costs incurred in successfully defending his or her rights under [the] [a]greement.’’ The agreement also contained a severability provision stating that, ‘‘[i]n case any provision of [the] [a]gree- ment should be held to be invalid, such invalidity shall not affect, in any way, any of the other provisions herein, all of which shall continue in full force and effect, in any country, state or jurisdiction in which such provisions are legal and valid.’’ In addition, the agreement provided that ‘‘[n]o change in circumstances of the parties shall render [the] [a]greement unconscio- nable if enforcement hereof is sought at any time in the future.’’ At the time that the parties executed the prenuptial agreement, the plaintiff’s annual income was $1,312,225, and her net worth was $12,319,380. The defendant’s estate had a fair market value of $5,150,295,3 and he disclosed income of $97,719.06 over the previous six months. The primary sources of the defendant’s income were a director’s fee of approximately $60,000 per year from an entity known as Intermountain Industries and guaranteed payments ranging from $80,000 to $100,00 per year from an entity known as 4H, LLC Family Part- nership (4H, LLC).4 The defendant received no other income from employment. Before their marriage, both the plaintiff and the defendant would frequently stay out all night socializing and drinking with friends. The plaintiff changed her behavior when she became pregnant shortly after the marriage, but the defendant did not. After the parties’ oldest daughter was born in late 2011, the defendant continued to neglect his responsibilities to his family. For example, ten months after his daughter’s birth, the defendant left the plaintiff at home alone with her while Hurricane Sandy struck their neighborhood, and the plaintiff was forced to seek shelter at her parents’ home. After the parties’ second daughter was born in 2013, the defendant’s family planned an intervention for him, as his drinking was out of control and he was being com- pletely unproductive. The intervention never occurred, and the defendant continued to stay out all night, sleep most of the day and ignore the needs of his wife and children. In August, 2014, the plaintiff contacted a divorce law- yer. Two weeks later, the house in Norwalk where the parties resided, which the defendant owned, was com- pletely destroyed by a fire. The parties then leased another residence in Norwalk. In November, 2014, the plaintiff filed an action for the dissolution of the mar- riage, but she later withdrew it. In 2015, the parties’ third daughter was born. During this period, the plaintiff started building a house in the Rowayton neighborhood of Norwalk. In March, 2016, the plaintiff separated from the defendant and moved into the Rowayton house with their three young daughters. Several weeks later, she filed this action seeking the dissolution of the marriage and enforcement of the prenuptial agreement. In February, 2017, the defendant filed an amended answer and cross complaint, alleging, inter alia, that the prenuptial agree- ment was unenforceable under § 46b-36g (a) (2) because it was unconscionable when enforcement was sought.5 Thereafter, in September, 2017, a yacht club in the Caribbean known as the Bitter End Yacht Club (Yacht Club), which was owned by the defendant’s family and in which the defendant had an indirect, fractional own- ership interest, was destroyed by Hurricane Irma. Also in 2017, Intermountain Industries failed due to a down- turn in the price of crude oil. As a result, it no longer paid the defendant a director’s fee, and its guaranteed payments to 4H, LLC were discontinued. Evidence presented at trial showed that, since the execution of the prenuptial agreement, the defendant’s assets had decreased in value from $5,150,295 to $2.1 million. A note on the defendant’s financial affidavit dated February 11, 2019, which was introduced as an exhibit at trial, indicated that $1,845,000 of these assets were held in the Justin Hokin Grantor Trust, represent- ing the trust’s ownership interests in other assets, ‘‘pri- marily [4H, LLC],’’ and that ‘‘[t]he most significant asset in [4H, LLC], is [the Yacht Club], which was destroyed by Hurricane Irma in the summer of 2017.’’ The note also indicated that the trust was ‘‘wholly illiquid’’ and that its value was not ‘‘accessible’’ to the defendant. The defendant had liabilities of $1,351,262, more than $1 million of which was debt owed to his father and to 4H, LLC, for ‘‘legal fees . . . .’’ The affidavit showed that the defendant had no significant income.6 The defendant contended in his posttrial brief to the trial court that the births of the parties’ three children, the destruction of his house by fire, the destruction of the Yacht Club by Hurricane Irma and the failure of Intermountain Industries were not contemplated when the prenuptial agreement was signed and that enforce- ment of the agreement would be unconscionable in light of these unforeseen events. Accordingly, the defendant requested that the trial court not enforce the agreement and, instead, order a property division ‘‘[that] . . . would permit the defendant to purchase a home in close proximity [to the plaintiff’s home] to provide the minor children a comparable quality of life between both par- ent households.’’ The plaintiff contended before the trial court that, to the contrary, the events cited by the defendant were not beyond the contemplation of the parties when they executed the prenuptial agreement. She also referred to evidence presented at trial that would support findings that, after the defendant received insurance proceeds for the destruction of his house, paid off two mortgages on the house and sold the land, he retained net proceeds of $775,587.73, as compared with equity of $20,309.58 at the time that the prenuptial agreement was executed; the value of the Yacht Club property on December 31,2017, was $14,900,000, $3,000,000 more than its value on the date that the prenuptial agreement was executed; and the defendant’s family was responsible for the fail- ure of Intermountain Industries. Accordingly, the plain- tiff argued that, even if the events were not contem- plated, it would not be unconscionable to enforce the prenuptial agreement, in part because it would be unfair to require the plaintiff bear the burden of the defen- dant’s neglectful and unproductive behavior. In its memorandum of decision, the trial court found that, at the time of trial, the plaintiff was forty-one years old and in good health. She had a bachelor’s degree in journalism and was two credits short of receiving her master’s degree in science from New York University. She had a net weekly income of $34,284,7 and the fair market value of her assets was $27.4 million. The defen- dant was forty-four years old and in good health. He had a bachelor’s degree in geography from the University of Montana. He had no significant income8 and his assets had a fair market value of $2.1 million.9 The trial court determined that the defendant was at fault for the breakdown of the marriage. The court observed that, after the parties’ three children were born, ‘‘the defendant continued to live a life full of drinking and partying. Instead of trying to provide for the plaintiff and their young children, the defendant remained stagnant and engulfed in a selfish mentality until he lost his footing in his business and his mar- riage.’’ The marriage ‘‘suffered as the defendant slept most of the day, stayed out all night, and did not make the plaintiff or the children even a remote priority in his life.’’ The trial court further found that, at the time that they entered into the prenuptial agreement, the parties had not contemplated that they would have three chil- dren, the defendant’s house would be destroyed by fire, the Yacht Club would be destroyed by a hurricane and that Intermountain Industries would fail, depriving the defendant of his primary source of income.10 Although the court concluded that these events were not specifi- cally contemplated by the parties when they entered into the agreement, it determined that they were not events that would render enforcement of the terms of the agreement unconscionable. When it came to the enforcement of the attorney’s fees provision, however, the trial court concluded that, under the circumstances existing at the time of trial, enforcement of that provision would be unconsciona- ble. The court observed that the plaintiff ‘‘has great financial wealth and [was] not incapable of paying for her own attorney’s fees.’’ In addition, the court found it ‘‘unlikely that the parties considered paying millions of dollars in attorney’s fees to the other party in the event of a marital dissolution’’ and that the enforcement of the attorney’s fees provision ‘‘would financially crip- ple the defendant’s remaining assets . . . .’’11 In light of these findings, the court concluded that, ‘‘while the totality of the agreement is not unconscionable, [the provision requiring a party who unsuccessfully chal- lenges the prenuptial agreement to pay the attorney’s fees of the other party] is unconscionable and should be stricken from the antenuptial agreement. The remainder of the parties’ antenuptial agreement shall be enforced . . . .’’ Accordingly, the trial court rendered judgment dissolving the parties’ marriage, striking the attorney’s fees provision from the prenuptial agreement and, consistent with the severability provision of the agreement, concluding that the remainder of the agree- ment was enforceable. The court also incorporated the final parenting plan into the judgment, pursuant to which the children were to reside primarily with the plaintiff but would spend time with defendant pursuant to a regular visitation schedule. In addition, the parties stipulated that the defendant would pay weekly child support in the amount of $57, in accordance with the child support guidelines. Thus, although the parties had joint legal custody of the children, the plaintiff was to have primary physical custody. This appeal followed.12 On appeal, the defendant con- tends that the trial court incorrectly determined that it would not be unconscionable to enforce the prenuptial agreement when it found that the parties did not initially contemplate that the defendant would be helping to raise three young children at a time when he had no income and greatly diminished assets.13 The plaintiff contends that, even if the parties did not initially con- template these events, the trial court correctly deter- mined that they were not so far beyond their contempla- tion as to render the enforcement of the agreement unconscionable.14 We agree with the plaintiff. We begin our analysis with the standard of review. Pursuant to § 46b-36g (a), ‘‘[a] premarital agreement . . . shall not be enforceable if the party against whom enforcement is sought proves that . . . (2) [t]he agree- ment was unconscionable when it was executed or when enforcement is sought . . . .’’ Whether the pre- nuptial agreement is enforceable is a mixed question of fact and law. See Friezo v. Friezo, 281 Conn. 166, 180–81, 914 A.2d 533 (2007), overruled in part on other grounds by Bedrick v. Bedrick, 300 Conn. 691, 17 A.3d 17 (2011). Although the underlying historical facts found by the trial court may not be disturbed unless they are clearly erroneous; see Kovalsick v. Kovalsick, 125 Conn. App. 265, 270–71, 7 A.3d 924 (2010); whether a prenuptial agreement is unconscionable in light of those facts, if not clearly erroneous, is a question of law subject to plenary review. See Crews v. Crews, 295 Conn. 153, 163–64, 989 A.2d 1060 (2010); see also General Statutes § 46b-36g (c) (‘‘[a]n issue of unconscio- nability of a premarital agreement shall be decided by the court as a matter of law’’). ‘‘Unconscionable is a word that defies lawyer-like definition. . . . The classic definition of an unconscio- nable contract is one which no [individual] in his senses, not under delusion, would make, on the one hand, and which no fair and honest [individual] would accept, on the other.’’ (Internal quotation marks omitted.) Beyor v. Beyor, 158 Conn. App. 752, 758, 121 A.3d 734, cert. denied, 319 Conn. 933, 125 A.3d 206 (2015). We have previously recognized that § 46b-36g was intended to endorse, clarify and codify the standards set forth in this court’s decision in McHugh v. McHugh, 181 Conn. 482, 436 A.2d 8 (1980). See, e.g., Friezo v. Friezo, supra, 281 Conn. 185–86 n.23. In McHugh, this court held that ‘‘an antenuptial agreement will not be enforced where the circumstances of the parties at the time of the dissolution are so far beyond the contempla- tion of the parties at the time the agreement was made as to make enforcement of the agreement work an injustice. . . . Thus, where a marriage is dissolved not because it has broken down irretrievably, but because of the fault of one of the parties, an antenuptial waiver of rights executed by the innocent party may not be enforceable, depending [on] the circumstances of the particular case and the language of the agreement. . . . Likewise, where the economic status of [the] parties has changed dramatically between the date of the agree- ment and the dissolution, literal enforcement of the agreement may work injustice.’’ (Citations omitted.) McHugh v. McHugh, supra, 489. Other unforeseen changes that may, depending on the circumstances, render a prenuptial agreement unenforceable include the birth of a child, loss of employment or a move to another state. Bedrick v. Bedrick, supra, 300 Conn. 706. ‘‘Absent such unusual circumstances, however, ante- nuptial agreements freely and fairly entered into will be honored and enforced by the courts as written.’’ McHugh v. McHugh, supra, 181 Conn. 489. ‘‘Unfairness or inequality alone does not render a [prenuptial] agree- ment unconscionable;15 spouses may agree on an unequal distribution of assets at dissolution. [T]he mere fact that hindsight may indicate the provisions of the agreement were improvident does not render the agree- ment unconscionable. . . . Instead, the question of whether enforcement of an agreement would be uncon- scionable is analogous to determining whether enforce- ment of an agreement would work an injustice. . . . Marriage, by its very nature, is subject to unforeseeable developments, and no agreement can possibly antici- pate all future events.’’ (Citations omitted; footnote added; internal quotation marks omitted.) Bedrick v. Bedrick, supra, 300 Conn. 705–706. Indeed, if every event that the parties did not anticipate could provide a basis for invalidating a prenuptial agreement, no such agreement would be enforceable. Thus, ‘‘the party seek- ing to challenge the enforceability of the antenuptial contract bears a heavy burden.’’ Crews v. Crews, supra, 295 Conn. 169; see id., 170 (‘‘proving uncontemplated, dramatically changed circumstances requires a signifi- cant showing’’); see also id. (‘‘McHugh requires an extraordinary change in economic status and . . . the threshold for finding such a dramatic change is high’’ (internal quotation marks omitted)). In the present case, we assume without deciding that the trial court correctly found that the parties did not contemplate the births of their three children, the destruction of the defendant’s house by fire, the destruc- tion of the Yacht Club by a hurricane or the failure of Intermountain Industries when they entered into the prenuptial agreement.16 We further assume that the resulting diminishment in the value of the defendant’s assets and his loss of income from Intermountain Indus- tries also were not contemplated. As we explained, however, it is clear under our case law that, standing alone, the fact that existing circumstances were beyond the parties’ initial contemplation does not establish that enforcement of a prenuptial agreement would be uncon- scionable. Rather, we must determine whether these circumstances were ‘‘so far beyond the contemplation of the parties at the time the agreement was made as to make enforcement of the agreement work an injustice.’’ McHugh v. McHugh, supra, 181 Conn. 489; see also Crews v. Crews, supra, 295 Conn. 168 (if court determines that circumstances at time of dissolution were beyond parties’ initial contemplation, court must then determine ‘‘whether enforcement would cause an injustice’’). In making this determination, we must con- sider all of the relevant facts and circumstances. See, e.g., Crews v. Crews, supra, 163. We first address the defendant’s contention that the trial court improperly failed to recognize that enforce- ment of the prenuptial agreement would be unconscio- nable in light of the uncontemplated births of the par- ties’ children and his loss of assets and income because the ‘‘children are entitled to continue the lifestyle to which [they were] accustomed and the standard of liv- ing [they] enjoyed before the divorce . . . .’’17 (Internal quotation marks omitted.) Hornung v. Hornung, 323 Conn. 144, 162, 146 A.3d 912 (2016). We are not per- suaded. There is no question in the present case that the children are being supported by the plaintiff at the same standard of living that they enjoyed before the dissolution. As far as the record reveals, they continue to live in the same house, to sleep there most nights, to attend the same schools, to receive the same level of health care and to enjoy the same food, clothing, vacations, entertainment and the like as they did before the marital dissolution. Thus, it is difficult to perceive the relevance of Hornung in the present case. Contrary to the defendant’s suggestion, the fact that a child spends a limited amount of time with a noncustodial parent who has a somewhat lower standard of living than the child does not, ipso facto, mean that the child’s standard of living is reduced. See Maturo v. Maturo, 296 Conn. 80, 108, 995 A.2d 1 (2010). Moreover, the defendant concedes that, as a noncustodial parent, he would not be entitled to a child support award under any circumstances. As we stated in Tomlinson v. Tom- linson, 305 Conn. 539, 46 A.3d 112 (2012), ‘‘the legisla- ture viewed the provision of custody as the premise underlying the receipt of child support payments; the legislature did not envision that the custodian would be required to pay child support to a person who does not have custody, as well as (in cases in which the obligor obtains custody) expend resources to provide directly for the care and welfare of the child. In fact, under the Child Support and Arrearage Guidelines . . . child support award is defined as the entire payment obligation of the noncustodial parent . . . .’’18 (Empha- sis in original; internal quotation marks omitted.) Id., 554. The defendant also appears to claim that, for the sake of the children, he is entitled to enjoy his predissolution standard of living because an ‘‘extraordinary disparity in parental income may hinder [the] lower income [non- custodial] parent’s ability to foster a relationship with the child . . . .’’ (Internal quotation marks omitted.) See Maturo v. Maturo, supra, 296 Conn. 101. Again, we are not persuaded. This court recognized in Maturo that, when there is an ‘‘extraordinary disparity’’ in parental income, the court may depart from the child support guidelines when the custodial parent has the higher income and deviation from the presumptive sup- port amount ‘‘would enhance the lower income [non- custodial] parent’s ability to foster a relationship with the child . . . .’’ (Internal quotation marks omitted.) Id.; see also Regs., Conn. State Agencies § 46b-215a- 5c (b) (6) (B) (when there is extraordinary disparity between parents’ net incomes, court may deviate from presumptive support amounts if deviation would ‘‘enhance the lower income parent’s ability to foster a relationship with the child’’ and ‘‘sufficient funds remain for the parent receiving support to meet the basic needs of the child after deviation’’). In other words, Maturo recog- nized that a lower income noncustodial parent may be permitted to pay less than the presumptive child sup- port amount to a higher income custodial parent if there is an extraordinary disparity in their incomes and the other conditions of the regulation are met—relief that the defendant in the present case did not seek. Thus, although § 46b-215a-5c (b) (6) (B) admittedly was intended to address the problems that may arise when divorced parents have disparate incomes and standards of living, the remedy that it provides is quite limited. Maturo does not suggest that a lower income noncusto- dial parent has any right under the regulation to receive child support from a higher income custodial parent for the purpose of enhancing the ability of the noncustodial parent to ‘‘foster a relationship’’ with a child who shares the custodial parent’s higher standard of living. Cf. Zheng v. Xia, 204 Conn. App. 302, 312, 253 A.3d 69 (2021) (under Maturo, trial court improperly ordered parent with higher income to pay supplemental, lump sum child support to custodial parent with no income other than child support on basis of ‘‘significant dispar- ity’’ in parties’ income). In Maturo, the court recognized that, ‘‘[w]hen a parent has an ability to pay a large amount of support, the determination of a child’s needs can be generous, but all any parent should be required to pay, regardless of his or her ability, is a fair share of the amount actually necessary to maintain the child in a reasonable standard of living. Court-ordered sup- port that is more than reasonably needed for the child becomes, in fact, [tax free] alimony.’’ Maturo v. Maturo, supra, 105–106. (Emphasis altered; internal quotation marks omitted.) Indeed, as we have already explained, a noncustodial parent is not entitled to a child support award under any circumstances. See Tomlinson v. Tomlinson, supra, 305 Conn. 554. The defendant contends that the fact that a noncusto- dial parent cannot receive child support supports his argument that the prenuptial agreement is unconsciona- ble because it demonstrates that, if the agreement is enforced, the trial court will be ‘‘without the tools to account properly for the best interests of [the] children, putting both the noncustodial parent and them in an untenable place.’’ (Emphasis added.) Thus, the defen- dant appears to suggest that, in the absence of the prenuptial agreement, the trial court would be author- ized to award alimony or a property distribution to him for the purpose of ensuring that he can provide for the children in the same manner as the plaintiff. This court has held, however, that it is improper to disguise a child support award as alimony, and that alimony should be used only to address the needs of the recipient parent.19 See Loughlin v. Loughlin, 280 Conn. 632, 655, 910 A.2d 963 (2006). Moreover, we observed in Tomlinson v. Tomlinson, supra, 305 Conn. 555, that ‘‘permitting the diversion of funds away from the [custodial] parent [who is] providing for the care and well-being of minor children . . . would contravene the purpose of child support.’’ Although we were referring in Tomlinson to a situation in which a former noncustodial parent takes custody of the children and becomes responsible for supporting them but continues to pay child support to the former custodial parent; see id., 541–42; the same principle would hold true whenever a custodial parent is required to pay any form of support to a noncustodial parent based on the fiction that the payment is for the support of the children.20 In short, we see nothing in our statutes or case law to suggest that it is the public policy of this state that a noncustodial parent is entitled to receive any form of postdissolution support for the sole purpose of ensuring that he or she has the ability to provide for the children of the marriage in the same manner as the custodial parent.21 Indeed, § 46b-215a-5c (b) (6) (B) of the regula- tions expressly contemplates that, after a marital disso- lution, the parents of a child may have an ‘‘[e]xtraordi- nary disparity’’ in income. It follows that the regulation contemplates that a child may well have a higher stan- dard of living than his or her noncustodial parent while continuing to have a relationship with that parent. We conclude, therefore, that Maturo does not support the proposition that it would be unfair, much less uncon- scionable, to enforce a prenuptial agreement merely because there is an extraordinary disparity between the incomes or standards of living of the custodial parent and the children, on the one hand, and the noncustodial parent, on the other hand.22 The defendant also relies on this court’s decision in Bedrick v. Bedrick, supra, 300 Conn. 691, to support his contention that enforcement of the prenuptial agree- ment would be unconscionable. In Bedrick, the parties executed a postnuptial agreement in 1977, providing that, in the event of a marital dissolution, neither party would receive alimony.23 Id., 693–94. Instead, the plain- tiff wife would receive a cash settlement in an amount to be periodically reviewed. Id., 694. A May 18, 1989 addendum to the agreement provided for a cash settle- ment in the amount of $75,000. Id. The plaintiff waived her interest in the defendant’s car wash business, and the defendant agreed that the plaintiff would not be held liable for his personal and business loans. Id. In the early 1990s, the defendant’s car wash business became successful. Id., 707. In 1991, when the parties were forty- one years old, their child was born. Id. By the time of trial, the plaintiff had worked for that business for thirty-five years, providing administrative and book- keeping support. Id. Since 2001, when the business began to deteriorate, the plaintiff had managed all busi- ness operations except for maintenance. Id. In 2004, the plaintiff worked outside of the business to provide the family with additional income. Id. The trial court concluded that ‘‘[t]he economic circumstances of the parties had changed dramatically since the execution of the agreement and that enforcement of the postnuptial agreement would have worked injustice.’’ (Internal quo- tation marks omitted.) Id. Accordingly, it concluded that the agreement was unenforceable. Id. This court concluded that ‘‘[t]he facts and circumstances . . . clearly support the findings of the trial court that, as a matter of law, enforcement of the agreement would be unconscionable.’’ Id., 708. In the present case, the defendant contends that Bedrick stands for the proposition that a prenuptial agreement is unenforceable whenever (1) a child was unexpectedly born during the marriage, and (2) a spouse has undergone dramatic economic changes. We conclude that Bedrick is easily distinguishable from the present case. First, in Bedrick, the plaintiff gave birth to the parties’ child after sixteen years of marriage when both parties were forty-one years old. See Bedrick v. Bedrick, Docket No. FA-XX-XXXXXXX, 2009 WL 1335100, *4 (Conn. Super. April 24, 2009). By contrast, in the present case, the parties’ three children were all born within five years of the marriage, when both parties were in their thirties. Although the children may not have been ‘‘contemplated’’ when the parties executed the prenuptial agreement, it is reasonable to conclude that their births were less of a bolt from the blue than the birth of the parties’ child in Bedrick. Indeed, when asked at trial whether he and the plaintiff ‘‘plan[ned] on having children during the course of the marriage,’’ the defendant replied, ‘‘[y]eah.’’ When asked what his plan was, he replied, ‘‘[t]o be fruitful and multiply.’’24 Second, the plaintiff in Bedrick worked for the defen- dant’s car wash business for thirty-five years, including the entire thirty-two year duration of the marriage, often seven days per week. Bedrick v. Bedrick, supra, 300 Conn. 707; Bedrick v. Bedrick, supra, 2009 WL 1335100, *3. The business floundered after the dissolution action was instituted and the plaintiff ceased working for it. Bedrick v. Bedrick, supra, 300 Conn. 707. In the present case, there is no evidence that the defendant contrib- uted to the success of any business or enterprise of the plaintiff. Third, in Bedrick, the plaintiff secured employment ‘‘outside of the [car wash] business in order to provide the family with additional income.’’ (Emphasis added.) Id. Although the defendant in the present case may have contributed to the support of his children during the marriage, there is no evidence that he provided financial support to the plaintiff.25 Finally, the plaintiff in Bedrick was fifty-seven years old at the time of the marital dissolution, did not have a college degree and had been diagnosed with diabetes, which was controlled by medication. Bedrick v. Bedrick, supra, 2009 WL 1335100, *3–4. In the present case, the defendant was forty-four years old at the time of dissolu- tion, had a college degree and was in good health. We further note that the defendant had significant assets at the time of the marital dissolution and is ade- quately provided for, at least in the near term. Although we recognize that his assets may not be sufficient to meet his needs for his entire lifetime, nothing in the record would support a conclusion that he is incapable of earning an income.26 To the contrary, the evidence showed that the defendant was an educated, healthy forty-four year old with some business experience, and he testified at trial that, once he expended his assets, he was ‘‘going to have to hustle and figure some things out, get . . . some salaried or . . . contract work . . . and hope that what [he’s] been working on for the last three years will come to fruition down in the . . . Virgin Islands.’’ In addition, the defendant’s counsel admitted to the trial court that the defendant ‘‘is intelli- gent, he is healthy, and he is capable of working.’’ Accordingly, we cannot conclude that it would be unconscionable to expect the defendant to obtain employment to replace the unexpected loss of his income from Intermountain Industries.27 Indeed, if we were to conclude otherwise, an employed person who entered into a prenuptial agreement and, after the mar- riage, lost his or her job could simply refuse to seek employment and then claim that his or her lack of employment was a dramatic change in circumstances warranting invalidation of the agreement. Moreover, there is no evidence that the defendant, unforeseeably or otherwise, gave up any income earn- ing or asset building opportunities as a result of his marriage or the births of the children, or that he made significant and ongoing contributions to family life, such as shopping, doing household chores, entertaining the plaintiff’s associates and family, or caring for the children, for which it would be unfair, much less uncon- scionable, not to compensate him. Cf. Hornung v. Hor- nung, supra, 323 Conn. 163 (‘‘[b]ecause the plaintiff’s efforts as a homemaker and the primary caretaker of the children increased the defendant’s earning capacity at the expense of her own, she is entitled to [an alimony award that will allow her to] maintain [her high predis- solution] standard of living after the divorce, to the extent possible’’). To the contrary, the trial court found that the defendant ‘‘did not make the plaintiff or the children even a remote priority in his life.’’ We conclude, therefore, that the trial court correctly determined that enforcement of the prenuptial agreement in the present case would not be unconscionable in light of all of the relevant facts and circumstances. Finally, the defendant contends that it was inconsis- tent for the trial court to conclude that it would be unconscionable to enforce the provision of the prenup- tial agreement requiring a party who unsuccessfully seeks to invalidate any portion of it to pay the attorney’s fees of the other party but not unconscionable to enforce the remainder of the agreement. We disagree. Significantly, the prenuptial agreement contained a sev- erability clause that expressly contemplated that, if one or more of its terms were found to be invalid, the rest of the agreement would survive. See A. Rutkin et al., 8A Connecticut Practice Series: Family Law and Prac- tice with Forms (3d Ed. 2010) § 50.53, p. 256; cf. Venture Partners, Ltd. v. Synapse Technologies, Inc., 42 Conn. App. 109, 118, 679 A.2d 372 (1996) (discussing principles of severability under Connecticut contract law). In sis- ter states that, like Connecticut, have premarital agree- ment statutes like § 46b-36g that are modeled after the Uniform Premarital Agreement Act; see, e.g., Friezo v. Friezo, supra, 281 Conn. 183–84; the presence of a severability clause renders enforceable the remainder of a prenuptial agreement that contains a provision that is unconscionable or invalid as a matter of law. See, e.g., In re Marriage of Heinrich, 7 N.E.3d 889, 906 (Ill. App. 2014) (concluding that severability clause left ‘‘remainder of the agreement . . . unaffected by [court’s] holding’’ that agreement’s ‘‘[attorney fee shift- ing] ban as to [child related] issues violates [Illinois] public policy and is unenforceable’’ as to those issues); Sanford v. Sanford, 694 N.W.2d 283, 293 (S.D. 2005) (emphasizing presence of savings clause in concluding that ‘‘[p]rovisions in a prenuptial agreement purporting to limit or waive 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 <mask>. 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.


The more difficult question has to do with section 465 (2). The first question was whether the failure here was “willful” (i.e., deliberate and knowing). That cannot be known on this record, one way or the other. The defendant himself did not fill out or sign the form himself; his wife did. The plaintiff therefore would have to demonstrate that the defendant instructed her not to answer these questions, an issue not even discussed by the parties — and which is an inquiry made even more problematic by the possible bar of <mask> (CPLR 4502 [b]). However, even assuming that willfulness could be proved, the court cannot permit a statutory section 462 (2) claim to proceed in this case.


There are many private interests in a matrimonial case. The most intimate relations of the parties and their finances may be subject to scrutiny. The broad <mask> (CPLR 4502 [b]) is inapplicable in divorce. Also the court is well aware that one of the problems in open matrimonial proceedings is the effect it would have on children of the marriage. While adult parties in today’s media-conscious world may be found to have no valid objection to having their dirty linen aired, the same cannot be said of the children who are the innocent victims of both their parents and the media (but see, Anonymous v Anonymous, supra). Even when custody is not involved in the trial, there are long-lasting scars caused by public humiliation of one or both parents. The court often tries to protect the children in pendente lite orders by precluding the parents from "bad mouthing” each other. The media have no such concerns. The issue of child protection in public divorce battles is one the Legislature should address (see, Brandes & Weidman, Privacy: Whose Right Is It, Anyway?, NYLJ, Oct. 24, 1995, at 3, col 1). *823The courts are unfortunately limited in their enforcement of the parties’ privacy.


Rodriguez's ex-wife,2 Donna Malone, testified. Rodriguez objected to Malone testifying regarding statements he made the day of the shooting on the basis of <mask>, but the trial court overruled the objection. Malone testified that, on the day of the shooting, as they drove past the Danaher house on the way to Walmart, Rodriguez said, "[T]hey're going to shut that down." Malone testified that Rodriguez seemed "[c]onfident that it would stop." They returned home from Walmart around 9:00 p.m., and as they drove by the Danaher house, Rodriguez said, "They're still at it." When they got home and out of the car, Rodriguez asked Malone "if [she]


Furthermore, when partners manifest the commitment to their relationship and family (see Braschi v Stahl Assoc. Co., 74 NY2d at 211, 213; East 10th St. Assoc. v Estate of Goldstein, 154 AD2d 142, 145 [1st Dept 1990]) by solemnizing that commitment elsewhere, through one of life’s most significant events, and come to New York, whether returning home or setting down roots, to carry on that commitment, nothing is more antithetical to family stability than requiring them to abandon that solemnized commitment. It is both a personal expression of emotional devotion, support, and interdependence and a public commitment. (Turner v Safley, 482 US 78, 95-96 [1987]; East 10th St. Assoc. v Estate of Goldstein, 154 AD2d at 143, 145.) With that validity, they expect equal treatment with other married couples in legal protections and economic benefits for the couples and for their children: owning property as a unit, insurance, workers’ compensation, health benefits, medical decision-making, wrongful death claims, intestacy, inheritance, and <mask>, for example. The emotional, familial, financial, *654and legal stability that accompanies marriage establishes a strong presumption in favor of the marriage’s continued validity. (See Matter of Lowney, 152 AD2d 574, 576 [2d Dept 1989]; Matter of Seidel v Crown Indus., 132 AD2d 729, 730 [3d Dept 1987]; Amsellem, v Amsellem, 189 Misc 2d 27, 29 [Sup Ct, Nassau County 2001].)