Cockerham v. Westphalen

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Cockerham v. Westphalen

KENNETH COCKERHAM v. ADAM
WESTPHALEN ET AL.
(AC 46231)
Alvord, Moll and Clark, Js.

Syllabus

Pursuant to statute (§ 52-552e (a)), ‘‘[a] transfer made or obligation incurred
by a debtor is fraudulent as to a creditor, if the creditor’s claim arose
before the transfer was made or the obligation was incurred and if the
debtor made the transfer or incurred the obligation: (1) With actual
intent to hinder, delay or defraud any creditor of the debtor; or (2)
without receiving a reasonably equivalent value in exchange for the
transfer or obligation, and the debtor (A) was engaged or was about to
engage in a business or a transaction for which the remaining assets
of the debtor were unreasonably small in relation to the business or
transaction, or (B) intended to incur, or believed or reasonably should
have believed that he would incur, debts beyond his ability to pay as
they became due.’’
The defendant J appealed from the judgment of the trial court rendered for
the plaintiff on three counts of his complaint that asserted claims of
fraudulent transfer against J and her husband, the defendant W, pursuant
to the Connecticut Uniform Fraudulent Transfer Act (CUFTA) (§ 52-
552a et seq.). In September, 2004, on the advice of W, the plaintiff
transferred funds from his 401 (k) account into an individual retirement
account (IRA) comanaged by A Co., W’s employer. W subsequently
formed T Co., and he left his employment with A Co. in 2007. In 2008,
on the advice of W, the plaintiff transferred the balance of his IRA into
another entity, and the funds were subsequently transferred to a bank
account owned by T Co. so that W, as the sole member of T Co.,
could fully manage and invest the funds for the plaintiff. As part of this
transaction, T Co. issued an unsecured promissory note to the plaintiff
in the amount of $185,000. The plaintiff invested additional funds into
accounts held and managed by T Co. in 2009 and 2011, bringing the
plaintiff’s total principal investment to more than $227,000. Thereafter,
W mismanaged the plaintiff’s investments and was negligent in the han-
dling of assets committed to him by the plaintiff by, inter alia, commin-
gling the plaintiff’s assets with those of other investors, taking no steps
to secure the plaintiff’s investment, paying numerous personal expenses
with T Co.’s assets and transferring T Co.’s assets to his personal
accounts without the knowledge of investors. Between 2008 and 2012,
T Co. suffered significant losses, failed to provide the plaintiff with
periodic reports concerning T Co.’s poor financial condition and failed
to provide the plaintiff with any financial records reflecting the plaintiff’s
losses. On May 1, 2017, the promissory note from T Co. to the plaintiff
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Cockerham v. Westphalen
matured. Although W represented to the plaintiff that his assets were
secure, T Co. was unable to satisfy its obligation to the plaintiff because
it lacked assets sufficient to satisfy the note. W subsequently dissolved
T Co., giving no notice of the dissolution to the plaintiff or to any other
creditors. The plaintiff commenced the present action in May, 2018,
claiming, inter alia, that W and J fraudulently transferred to themselves
various moneys and assets belonging to T Co. in violation of CUFTA,
specifically § 52-552e. In July, 2018, the plaintiff applied for a prejudg-
ment remedy against, inter alia, J and W, which was granted in January,
2019, as against W. While the litigation was ongoing, the Department of
Banking commenced an investigation into W, and, although it was
unclear from the record precisely when the department’s investigation
commenced, as of September, 2018, W had been made aware of the
investigation and had retained counsel. Due to this investigation, W
closed all his personal bank accounts. Between September, 2018, and
July, 2019, W conveyed more than $233,000, representing amounts he
had received for professional services he had rendered to various parties,
to J through a series of deposits into an account owned solely by her.
In July, 2020, the department issued orders that, inter alia, imposed a
fine of $900,000 against W and required him to pay restitution to the
plaintiff in the amount of $367,000. At trial, J testified that she did
not notice in November or December of 2018 that $100,000 had been
deposited into her sole personal bank account over a period of two
weeks and that she never looked at her bank statements. After the trial,
the court, inter alia, rendered judgment against J on three counts of
fraudulent transfer, concluding that W fraudulently transferred funds
to J between 2018 and 2019 in violation of CUFTA and under the common
law. The court found that, at the time of the transfers to J, W was unable
to pay fines and restitution orders imposed by the department and had
wound up T Co., leaving the plaintiff and others without any means of
recovering their investments of principal; that J never provided any
consideration for the infusion of funds into her account and used funds
from that account to pay various personal and household expenses; that
the transfer of funds by W into J’s personal account was fraudulent and
designed to place his personal assets beyond the reach of creditors and
potential creditors, including the plaintiff; and that any claim that J
was unaware of the purpose of the fraudulent transfer of funds lacked
credibility, that J possessed fraudulent intent and that she willingly and
actively participated in W’s attempt to shield assets and place those
assets beyond the reach of creditors, including the plaintiff. The court
also attached J’s assets in the amount of the funds fraudulently trans-
ferred to her by W. Held:
1. J could not prevail on her claim that the trial court erred in concluding
that the transfers from W were made with an actual intent to defraud
because its finding that both J and W participated in the transfer with
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Cockerham v. Westphalen
the actual intent to hinder or defraud the plaintiff from collecting on a
judgment was clearly erroneous:
a. The trial court properly rendered judgment for the plaintiff on his
statutory fraudulent transfer claim pursuant to § 52-552e (a) (1) because
its finding that the transfers were made with an actual intent to defraud
was not clearly erroneous: because § 52-552e (a) (1) does not require a
plaintiff to prove that a transferee shared in a transferor’s fraudulent
intent, the plaintiff was not required to prove that J shared in W’s intent
in order to prevail under § 52-552e (a) (1); moreover, the evidence pre-
sented at trial revealed that the transfers at issue satisfied many of the
factors set forth in § 52-552e (b) that courts may consider in determining
whether a transfer was made with actual intent to defraud, including
that the transfers were made to an insider, that, before the transfers
were made, W had been sued or threatened with suit by way of the
present action and the investigation by the department, that W was
insolvent or became insolvent shortly after the transfers were made or
the obligation was incurred, given that W was unable to pay the fine
and restitution imposed by the department, and that, at the time of the
transfers, he was unable to pay the amount that the plaintiff had invested
in T Co., that W retained possession or control of the property transferred
after the transfers were made given that J used the transferred funds to
pay various personal and household expenses as well as W’s personal
expenses, that W did not receive reasonably equivalent value in exchange
for the transfers to J given that the evidence adduced at trial showed that
W received no value whatsoever in exchange for the transfers because
he did not receive anything that he could use to satisfy or partially satisfy
a creditor’s claim, and that the transfers occurred shortly before and
shortly after the court granted the prejudgment attachment against W’s
assets and before the department imposed the fine against W and ordered
restitution to be paid to the plaintiff.
b. The trial court did not err in concluding that the transfers were actually
fraudulent under the common law: the court found that any claim that
J was unaware of the purpose of the fraudulent transfer of the funds
lacked credibility, that she possessed fraudulent intent and that she
willingly and actively participated in W’s attempt to shield assets and
place those assets beyond the reach of creditors, including the plaintiff,
and, as the fact finder, the court was entitled to make this credibility
determination as to J, and this court would not disturb those findings
on appeal; moreover, the trial court, as the finder of fact, was entitled
to infer from all of the circumstances surrounding the transfers that J
shared in W’s fraudulent intent.
2. J could not prevail on her claim that the trial court improperly determined
that the transfers to her were constructively fraudulent under the com-
mon law and § 52-552e (a) (2): the court’s finding that the transfers to
J left W unable to meet his financial obligations was not clearly errone-
ous, as the record revealed that W admitted at trial that he was unable
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Cockerham v. Westphalen
to pay the fine or restitution imposed on him by the department or the
amount that the plaintiff originally invested in T Co. and, further, that
he disclosed information regarding J’s personal checking account to the
department because of the pending investigation against him but that
by the time he had done so there was only a small amount of funds
remaining in the account; moreover, there was no support in the record
for J’s argument that she personally invested $750,000 into the T Co.
fund, suggesting that the transfers at issue could have been made as a
repayment of her investment into T Co., as W testified at trial that the
transfers to J’s bank account consisted solely of funds that he received
for professional services unrelated to T Co. and that he transferred the
funds because of the pending department investigation and, thus, based
on W’s own testimony, it was clear that the transfers at issue were wholly
unrelated to J’s alleged investment in T Co.; furthermore, although J
argued that love and affection is valid consideration between a husband
and wife, none of the cases cited by J in her appellate brief stands for the
proposition that love and affection may constitute valid consideration
for purposes of defeating a fraudulent transfer claim under the common
law or CUFTA, and, on the contrary, various courts have long held
that love and affection does not constitute adequate consideration for
purposes of defeating a fraudulent conveyance claim, and, accordingly,
in the absence of any evidence in the record to support J’s assertion
that W received adequate consideration or reasonably equivalent value
for the transfers, this court could not conclude that the trial court’s
finding that the transfers were made without consideration and not in
exchange for a reasonable equivalent value was clearly erroneous.

Argued January 31—officially released May 21, 2024

Procedural History

Action to recover damages for, inter alia, fraudulent
transfer, and for other relief, brought to the Superior
Court in the judicial district of Fairfield and tried to
the court, Hon. Dale W. Radcliffe, judge trial referee;
judgment for the plaintiff, from which the defendant
Jennifer Westphalen appealed to this court. Affirmed.

William W. Taylor, for the appellant (defendant Jen-
nifer Westphalen).

Sabato P. Fiano, for the appellee (plaintiff).
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Cockerham v. Westphalen

Opinion

CLARK, J. The defendant Jennifer Westphalen1
appeals from the judgment of the trial court rendered
against her and in favor of the plaintiff, Kenneth Cock-
erham, on counts nine, ten, and eleven of the plaintiff’s
complaint, asserting claims of fraudulent transfer
against the defendant and her husband, Adam Westpha-
len (Westphalen), pursuant to the Connecticut Uniform
Fraudulent Transfer Act (CUFTA), General Statutes
§ 52-552a et seq. On appeal, the defendant claims that
the court erred in finding that Westphalen fraudulently
transferred money to the defendant under the common
law2 and pursuant to General Statutes § 52-552e. Specifi-
cally, the defendant argues that the court erred in find-
ing that Westphalen possessed actual fraudulent intent,
1
The plaintiff, Kenneth Cockerham, brought the underlying action against
Adam Westphalen; his wife, Jennifer Westphalen; and five entities:
AssetMark, Inc., also known as AssetMark Investment Services; Vista Invest-
ment Advisors, LLC; Nereid II Fund, LLC; Mosaic Financial Strategies, LLC;
and Triton Investment Partners, LLC. Prior to trial, the claims pleaded against
all defendants except Adam Westphalen, Jennifer Westphalen, and Triton
Investment Partners, LLC, were withdrawn. The only defendant participating
in the present appeal is Jennifer Westphalen. Accordingly, all references to
the defendant in this opinion are to Jennifer Westphalen only.
2
Although the operative complaint only asserted statutory fraudulent
transfer claims, the court concluded that the plaintiff proved both actual
and constructive fraud under the common law and General Statutes § 52-
552e. On appeal, neither party has challenged the court’s judgment that the
defendant is liable for fraudulent transfers at common law on the basis that
the plaintiff did not plead a common-law claim. Instead, both parties briefed
the merits of the court’s judgment that the defendant was liable for fraudulent
transfers under the common law. Because neither party has raised any claim
of error with respect to the court’s judgment on the basis that the plaintiff
did not plead a common-law fraudulent transfer claim, we will not disturb
the court’s judgment on that basis. See Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 164, 84 A.3d
840 (2014) (‘‘our system is an adversarial one in which the burden ordinarily
is on the parties to frame the issues, and the presumption is that issues not
raised by the parties are deemed waived’’); see also Guzman v. Yeroz, 167
Conn. App. 420, 426 n.5, 143 A.3d 661 (‘‘a court is not obligated to raise or
consider plain error if a party has failed to do so’’ (emphasis in original)),
cert. denied, 323 Conn. 923, 150 A.3d 1152 (2016).
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Cockerham v. Westphalen

that the defendant shared in that intent, and that the
transfers were made without consideration, leaving
Westphalen unable to meet his financial obligations. We
disagree with the arguments advanced by the defendant
and, accordingly, affirm the judgment of the trial court.
The following facts, as found by the court, and proce-
dural history are relevant to our resolution of this
appeal. The plaintiff’s wife, Stacey Cockerham, is the
defendant’s cousin. The plaintiff first met Westphalen
in 1995, and in the years that followed, the couples
developed a friendship. Westphalen holds a master’s
degree in business administration from Cornell Univer-
sity and a degree in legal taxation from the New York
University School of Law. He has been a certified finan-
cial planner since 2003.
Between 1998 and 2007, Westphalen was employed
by AssetMark Investment Services (AssetMark). During
this time, he also held a 50 percent interest in Vista
Investment Advisors, LLC (Vista). In September, 2004,
on the advice of Westphalen, the plaintiff, who at the
time was employed by AT&T and participated in his
employer’s 401 (k) plan, transferred $173,000 from his
401 (k) account into an individual retirement account
(IRA) managed by AssetMark and Vista. AssetMark and
Vista played a dual role in managing the IRA. Vista’s
role was to communicate with the plaintiff about his
goals and objectives and then to provide AssetMark
with that information. AssetMark’s role was to take the
information given to it by Vista and to manage the
account through its investment platform.
While Westphalen was employed by AssetMark, he
formed Triton Investment Partners, LLC (Triton). West-
phalen was the sole member of Triton and had complete
control, management, and authority over all matters
relating to Triton. Westphalen was subject to no outside
control or direction regarding Triton. Westphalen
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Cockerham v. Westphalen

claimed that he formed Triton to serve as a vehicle
through which he could manage the assets of family
members and close friends.
Westphalen left AssetMark in 2007. In 2008, on the
advice of Westphalen, the plaintiff transferred the bal-
ance of his IRA, in the amount of $187,048.86, into
an entity called Pensco Trust. After the funds were
transferred to Pensco Trust, they were subsequently
transferred to a Chase account owned by Triton so that
Westphalen, as the sole member of Triton, could fully
manage and invest the funds for the plaintiff. As part of
this transaction, Triton issued an unsecured promissory
note to the plaintiff in the amount of $185,000. Westpha-
len did not personally guarantee that promissory note.
In 2009, the plaintiff invested an additional $27,266.91
into accounts held and managed by Triton, followed
by an additional investment in 2011 in the amount of
$12,923.32, bringing the plaintiff’s total principal invest-
ment to $227,239.09.
Westphalen, as the sole member of Triton, misman-
aged the plaintiff’s investments and ‘‘was negligent in
the handling of assets committed to him by [the plain-
tiff].’’ For example, once the plaintiff’s assets were con-
trolled by Triton, Westphalen began to commingle the
plaintiff’s assets with those of other investors. Westpha-
len took no steps to secure the plaintiff’s investment.
Throughout the years, Westphalen paid numerous per-
sonal expenses with Triton assets and transferred Tri-
ton assets to his personal accounts without the knowl-
edge of investors. Between 2008 and 2012, Triton
suffered losses between $1.5 and $2 million. During this
period, Triton did not provide the plaintiff with periodic
reports concerning Triton’s poor financial condition
and failed to provide the plaintiff with any financial
records reflecting the plaintiff’s losses.
On May 1, 2017, the operative promissory note from
Triton to the plaintiff matured. Although Westphalen
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Cockerham v. Westphalen

represented to the plaintiff that his assets were secure,
Triton was unable to satisfy its obligation to the plaintiff
because it lacked assets sufficient to satisfy the note.
Westphalen subsequently dissolved Triton, giving no
notice of the dissolution to the plaintiff or to any other
creditors.
The plaintiff commenced this action on May 17, 2018,
claiming, inter alia, that Westphalen, acting both as
an individual and as the sole member of Triton, had
mismanaged, dissipated, and ultimately lost the retire-
ment funds the plaintiff had entrusted to Westphalen
and various limited liability and corporate entities. Rele-
vant for present purposes, in counts nine, ten, and
eleven of the complaint, the plaintiff claimed that West-
phalen and the defendant fraudulently transferred to
themselves various moneys and assets belonging to
‘‘Westphalen Entities’’3 in violation of § 52-552e.4 Specif-
ically, count nine alleged a violation of § 52-552e (a)
3
The complaint alleged that the ‘‘Westphalen Entities’’ included Vista,
Triton, and two other entities, Mosaic Financial Strategies, LLC, and Nereid
II Fund, LLC, and that Westphalen was a principal and/or interest holder
in each of them.
4
General Statutes § 52-552e provides: ‘‘(a) A transfer made or obligation
incurred by a debtor is fraudulent as to a creditor, if the creditor’s claim
arose before the transfer was made or the obligation was incurred and if
the debtor made the transfer or incurred the obligation: (1) With actual
intent to hinder, delay or defraud any creditor of the debtor; or (2) without
receiving a reasonably equivalent value in exchange for the transfer or
obligation, and the debtor (A) was engaged or was about to engage in a
business or a transaction for which the remaining assets of the debtor were
unreasonably small in relation to the business or transaction, or (B) intended
to incur, or believed or reasonably should have believed that he would incur,
debts beyond his ability to pay as they became due.
‘‘(b) In determining actual intent under subdivision (1) of subsection (a)
of this section, consideration may be given, among other factors, to whether:
(1) The transfer or obligation was to an insider, (2) the debtor retained
possession or control of the property transferred after the transfer, (3) the
transfer or obligation was disclosed or concealed, (4) before the transfer
was made or obligation was incurred, the debtor had been sued or threatened
with suit, (5) the transfer was of substantially all the debtor’s assets, (6)
the debtor absconded, (7) the debtor removed or concealed assets, (8) the
value of the consideration received by the debtor was reasonably equivalent
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Cockerham v. Westphalen

(1), count ten alleged a violation of § 52-552e (a) (2)
(A), and count eleven alleged a violation of § 52-552e
(a) (2) (B).

On July 26, 2018, the plaintiff applied for a prejudg-
ment remedy against the defendant, Westphalen, Triton,
and Mosaic Financial Strategies, LLC (Mosaic), pursu-
ant to General Statutes § 52-278a et seq., in the amount
of $500,000. A hearing on the application was held
before the court, T. Welch, J., on November 8, 2018.
On January 7, 2019, the court granted the plaintiff’s
application for a prejudgment remedy against Westpha-
len and Triton. The court stated: ‘‘After a careful review
of the evidence, briefs, the corresponding legal princi-
ples and taking into consideration the defendants’ pro-
posed defenses . . . the court finds that probable
cause exists to support the plaintiff’s claims against
[Westphalen] and [Triton] as to count three (negligent
misrepresentation) and count four (negligence) and
against [Triton] as to count eight (breach of contract).
The court does not find that the plaintiff has satisfied
his burden of proof relative to [the defendant] or
[Mosaic] as to any of the counts which were the subject
of the prejudgment remedy hearing nor has the plaintiff
satisfied his burden of proof relative to the first count
(promissory estoppel). Accordingly, pursuant to Gen-
eral Statutes § 52-278d, the court grants a prejudgment
attachment in favor of the plaintiff and against [Triton]
and [Westphalen] only, in the amount of $450,000.’’

While this litigation was ongoing, the Department of
Banking (department) commenced an investigation into
to the value of the asset transferred or the amount of the obligation incurred,
(9) the debtor was insolvent or became insolvent shortly after the transfer
was made or the obligation was incurred, (10) the transfer occurred shortly
before or shortly after a substantial debt was incurred, and (11) the debtor
transferred the essential assets of the business to a lienor who transferred
the assets to an insider of the debtor.’’
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Westphalen. Although it is unclear from the record pre-
cisely when the department’s investigation com-
menced, as of September, 2018, Westphalen had been
made aware of the investigation and had retained coun-
sel. Due to this investigation, Westphalen closed all his
personal bank accounts. Beginning in September, 2018,
and continuing through July, 2019, Westphalen con-
veyed $233,069.28 to the defendant through a series of
deposits into an account owned solely by the defendant.
These transfers represented amounts that he had
received for professional services that he had rendered
to various parties. On July 27, 2020, the department
issued orders that, inter alia, imposed a fine of $900,000
against Westphalen and required him to pay restitution
to the plaintiff in the amount of $367,000.
The matter was subsequently tried to the court, Hon.
Dale W. Radcliffe, judge trial referee, on January 12
and 13, 2022.5 On June 22, 2022, the court rendered
judgment against the defendant on counts nine, ten, and
eleven of the complaint,6 concluding that Westphalen
fraudulently transferred funds to the defendant
between 2018 and 2019 in violation of CUFTA and under
the common law.7 The court stated: ‘‘Westphalen testi-
fied that he deposited income into an account solely
5
This matter was tried twice. The first trial commenced on October 10,
2019, and concluded on January 8, 2020, before the court, Hon. Edward F.
Stodolink, judge trial referee. On March 16, 2021, the defendant and Westpha-
len filed a motion for a mistrial predicated on the court’s failure to render
a timely decision pursuant to General Statutes § 51-183b, which requires
that a trial court render a decision within 120 days after the completion of
a civil trial. On April 22, 2021, the court, Stevens, J., granted the motion for
a mistrial, and a new trial was scheduled.
6
The court also rendered judgment against Westphalen on counts four,
five, seven, eight, and fifteen of the complaint and rendered judgment against
Triton on count eight of the complaint.
7
Although the plaintiff’s complaint alleged fraudulent transfers from the
Westphalen Entities to Westphalen and the defendant that occurred prior
to the date the complaint was filed, the evidence presented at trial, and on
which the trial court’s judgment is based, is predicated on transfers occurring
between Westphalen and the defendant in 2018 and 2019, after the complaint
was filed. The defendant, however, did not object on that basis to any of
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Cockerham v. Westphalen

in the name of [the defendant] and closed existing
accounts in his own name because of the proceedings
before the [department]. At the time of the transfers,
2018 and 2019, [Westphalen] was unable to pay fines
and restitution orders imposed by the [department] and
had wound up [Triton], leaving the plaintiff and others
without any means of recovering their investments of
principal.
‘‘[The defendant] never provided any consideration
for the infusion of funds into her account and used
funds from that account to pay various personal and
household expenses. She also deposited her own
income into the account.
‘‘It is found that the transfer of funds by [Westphalen]
into [the defendant’s] personal account was fraudulent
and designed to place his personal assets beyond the
reach of creditors and potential creditors, including [the
plaintiff].
‘‘It is found that both actual and constructive fraud,
both at common law and pursuant to applicable stat-
utes, has been proven by clear and convincing evidence.
‘‘It is found that any claim that [the defendant] was
unaware of the purpose of the fraudulent transfer of
funds lacks credibility. It is found by clear and convinc-
ing evidence that [the defendant] possessed fraudulent
the evidence presented in the trial court and has not challenged the court’s
judgment on that basis in this appeal. Because these causes of action, while
unpleaded, were actually litigated at trial, without objection, we will not
disturb the trial court’s judgment on the basis of a pleading irregularity. See
Gleason v. Durden, 211 Conn. App. 416, 431, 272 A.3d 1129 (‘‘[I]n the context
of a postjudgment appeal, if a review of the record demonstrates that an
unpleaded cause of action actually was litigated at trial without objection
such that the opposing party cannot claim surprise or prejudice, the judgment
will not be disturbed on the basis of a pleading irregularity. . . . In that
circumstance, provided the plaintiff has produced sufficient evidence to
prove the elements of his unpleaded claim, the defendant will be deemed
to have waived any defects in notice.’’ (Internal quotation marks omitted.)),
cert. denied, 343 Conn. 921, 275 A.3d 211 (2022).
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Cockerham v. Westphalen

intent and willingly and actively participated in the
attempt of [Westphalen] to shield assets and place those
assets beyond the reach of creditors, including [the
plaintiff].
‘‘It is found that the amount of money transferred by
[Westphalen] is $233,069.28.
‘‘Judgment may therefore enter, as to counts nine,
ten and eleven, as against both [Westphalen] and [the
defendant]. It is further found that an attachment
against the assets of [the defendant] should enter based
upon the fraudulent transfers of money into her
account, in the amount of $233,069.28.’’ This appeal
followed.
On appeal, the defendant claims that the court erred
‘‘in finding actual and constructive fraud at both com-
mon law and pursuant to [§ 52-552e]’’ because the evi-
dence does not support the court’s findings that West-
phalen possessed actual fraudulent intent, that the
defendant willingly and actively participated in the
alleged fraud, or that the transfers were made without
consideration, leaving Westphalen unable to meet his
financial obligations. We are not persuaded.
We begin by setting forth the standard of review and
legal principles relevant to this claim. ‘‘The determina-
tion of whether a fraudulent transfer took place is a
question of fact and it is axiomatic that [t]he trial court’s
[factual] findings are binding upon this court unless
they are clearly erroneous in light of the evidence and
the pleadings in the record as a whole. . . . We cannot
retry the facts or pass on the credibility of the witnesses.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . The elements of fraudulent conveyance, including
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Cockerham v. Westphalen

whether the defendants acted with fraudulent intent,
must be proven by clear, precise and unequivocal evi-
dence. . . . This standard, also referred to as the clear
and convincing standard, is met if the evidence induces
in the mind of the trier a reasonable belief that the facts
asserted are highly probably true, that the probability
that they are true or exist is substantially greater than
the probability that they are false or do not exist. . . .
Put another way, the clear and convincing standard
should operate as a weighty caution upon the minds of
all judges, and it forbids relief whenever the evidence
is loose, equivocal or contradictory.’’ (Citation omitted;
internal quotation marks omitted.) Featherston v.
Katchko & Son Construction Services, Inc., 201 Conn.
App. 774, 792, 244 A.3d 621 (2020), cert. denied, 336
Conn. 923, 246 A.3d 492 (2021).
In Connecticut, there exists both a common-law and
statutory cause of action for fraudulent conveyance. ‘‘A
party alleging a fraudulent transfer or conveyance under
the common law bears the burden of proving either:
(1) that the conveyance was made without substantial
consideration and rendered the transferor unable to
meet his obligations [(constructive fraud)] or (2) that
the conveyance was made with a fraudulent intent in
which the grantee participated [(actual fraud)].’’ (Inter-
nal quotation marks omitted.) McKay v. Longman, 332
Conn. 394, 417, 211 A.3d 20 (2019).
Under § 52-552e, on the other hand, ‘‘(a) A transfer
made or obligation incurred by a debtor is fraudulent
as to a creditor, if the creditor’s claim arose before the
transfer was made or the obligation was incurred and
if the debtor made the transfer or incurred the obliga-
tion: (1) With actual intent to hinder, delay or defraud
any creditor of the debtor; or (2) without receiving a
reasonably equivalent value in exchange for the transfer
or obligation, and the debtor (A) was engaged or was
about to engage in a business or a transaction for which
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the remaining assets of the debtor were unreasonably
small in relation to the business or transaction, or (B)
intended to incur, or believed or reasonably should have
believed that he would incur, debts beyond his ability
to pay as they became due.’’ With these principles in
mind, we turn to the defendant’s claims on appeal.
I
We first address the defendant’s claim that the court
erred in concluding that the transfers were made with
an actual intent to defraud pursuant to § 52-552e (a)
(1) and under the common law because its finding that
both the defendant and Westphalen participated in the
transfer with the actual intent to hinder or defraud
the plaintiff from collecting on a judgment was clearly
erroneous. We are not persuaded.
A
With respect to the court’s conclusion that the plain-
tiff was entitled to a judgment on his statutory fraudu-
lent transfer claim, the defendant first argues that the
court’s finding that the transfers were made with an
actual intent to defraud was clearly erroneous because
‘‘[t]here is absolutely no clear and convincing evidence
of fraudulent intent on the part of [the defendant], and
therefore actual fraud cannot be found.’’ The plaintiff
correctly points out, however, that § 52-552e (a) (1)
does not require a plaintiff to prove that a transferee like
the defendant shared in a transferor’s fraudulent intent.
Section 52-552e (a) (1) provides: ‘‘A transfer made
or obligation incurred by a debtor is fraudulent as to a
creditor, if the creditor’s claim arose before the transfer
was made or the obligation was incurred and if the
debtor made the transfer or incurred the obligation:
(1) With actual intent to hinder, delay or defraud any
creditor of the debtor . . . .’’ Unlike the common law,
the statutory cause of action for a fraudulent transfer
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based on a transferor’s actual intent to defraud a credi-
tor does not require a plaintiff to prove that a transferee
shared the transferor’s fraudulent intent. In Kosiorek
v. Smigelski, 138 Conn. App. 695, 54 A.3d 564 (2012),
cert. denied, 308 Conn. 901, 60 A.3d 287 (2013), this
court explained that, ‘‘[p]rior to the adoption of [§ 52-
552e], the plaintiff had to prove (1) that the transferor
had intent to defraud the creditor and (2) that the trans-
feree shared in the transferor’s fraudulent intent. . . .
The plain language in § 52-552e addresses the fraudu-
lent intent of the debtor and makes no mention of the
fraudulent intent of the transferee.’’ (Emphasis omitted;
internal quotation marks omitted.) Id., 726. Therefore,
‘‘[w]ith respect to [claims] under § 52-552e . . . there
is no requirement for a fraudulent intent with respect
to the transferees.’’ (Emphasis added.) Id., 727. Because
a plaintiff is not required to prove that a transferee
shared in a transferor’s intent in order to prevail under
§ 52-552e (a) (1), the defendant’s claim, that the court
erred in holding her liable because its finding that she
shared in Westphalen’s fraudulent intent was clearly
erroneous, fails as a matter of law.
Nevertheless, the defendant also claims that the court
erred in holding her liable under § 52-552e (a) (1)
because its finding that Westphalen made the transfers
with the actual intent to hinder, delay, or defraud the
plaintiff also was clearly erroneous. Specifically, the
defendant argues that there was no evidence to support
such a finding. We disagree.
‘‘With respect to finding actual intent as set forth in
§ 52-552e (a) (1), [our Supreme Court has] stated that,
because fraudulent intent is almost always . . . proven
by circumstantial evidence, courts may consider numer-
ous factors in determining whether a transfer was made
with actual intent to defraud.’’ (Internal quotation
marks omitted.) McKay v. Longman, supra, 332 Conn.
422. These factors are set forth in § 52-552e (b), which
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provides: ‘‘In determining actual intent under subdivi-
sion (1) of subsection (a) of this section, consideration
may be given, among other factors, to whether: (1) The
transfer or obligation was to an insider, (2) the debtor
retained possession or control of the property trans-
ferred after the transfer, (3) the transfer or obligation
was disclosed or concealed, (4) before the transfer was
made or obligation was incurred, the debtor had been
sued or threatened with suit, (5) the transfer was of
substantially all the debtor’s assets, (6) the debtor
absconded, (7) the debtor removed or concealed assets,
(8) the value of the consideration received by the debtor
was reasonably equivalent to the value of the asset
transferred or the amount of the obligation incurred,
(9) the debtor was insolvent or became insolvent shortly
after the transfer was made or the obligation was
incurred, (10) the transfer occurred shortly before or
shortly after a substantial debt was incurred, and (11)
the debtor transferred the essential assets of the busi-
ness to a lienor who transferred the assets to an insider
of the debtor.’’
In support of its finding that Westphalen transferred
funds to the defendant with actual intent to hinder,
delay, or defraud his creditors, the court stated that
‘‘Westphalen testified that he deposited income into an
account solely in the name of [the defendant], and
closed existing accounts in his own name, because of
the proceedings before the [department].’’ The court
further found ‘‘that the transfer of funds by [Westpha-
len] into [the defendant’s] personal account was fraudu-
lent and designed to place his personal assets beyond
the reach of creditors and potential creditors, including
[the plaintiff].’’
On the basis of our review of the record, we conclude
that these findings were not clearly erroneous. At trial,
evidence was presented that Westphalen conveyed
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$233,069.28 to the defendant through a series of depos-
its that occurred between September, 2018, and July,
2019. Westphalen testified that these transfers repre-
sented amounts that he had received for professional
services that he had rendered to various parties, which
he subsequently deposited into a bank account owned
solely by the defendant.
The evidence presented at trial revealed that the
transfers at issue in this case satisfy many of the § 52-
552e (b) factors that ‘‘courts may consider . . . in
determining whether a transfer was made with ‘actual
intent’ to defraud.’’ McKay v. Longman, supra, 332
Conn. 422. To begin, there is no dispute that the trans-
fers were made ‘‘to an insider.’’ General Statutes § 52-
552e (b) (1). The transfers were made by Westphalen
to his wife, the defendant. Pursuant to General Statutes
§ 52-552b (7), ‘‘ ‘[i]nsider’ includes . . . a relative of the
debtor’’ and, pursuant to § 52-552b (11), ‘‘ ‘[r]elative’
means . . . a spouse . . . .’’
Next, the evidence showed that ‘‘before the transfer
was made . . . the debtor had been sued or threatened
with suit . . . .’’ General Statutes § 52-552e (b) (4). This
action was commenced on May 17, 2018, and the trans-
fers did not begin until September, 2018. Although it is
unclear from the record exactly when the department
commenced its investigation, Westphalen testified that,
as of September, 2018, before any of the transfers had
occurred, he had been made aware of the investigation
and had retained counsel. Indeed, Westphalen specifi-
cally testified that he transferred the funds to the defen-
dant and closed all his personal bank accounts on the
advice of his attorney due to the pending department
investigation.8 Thus, Westphalen clearly had been sued
or threatened with suit before the transfers were made.
8
The following exchange took place during the direct examination of
Westphalen by the plaintiff’s counsel:
‘‘[The Plaintiff’s Counsel]: Okay. And we’ve already seen from the evidence
that, at this time, there were, in fact, other bank accounts that—that you
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The evidence also showed that ‘‘the debtor was insol-
vent or became insolvent shortly after the transfer was
made or the obligation was incurred . . . .’’ General
Statutes § 52-552e (b) (9). General Statutes § 52-552c,
which defines insolvency, provides in relevant part: ‘‘(a)
A debtor is insolvent if the sum of the debtor’s debts
is greater than all of the debtor’s assets at a fair valua-
tion. (b) A debtor who is generally not paying his debts
as they become due is presumed to be insolvent. . . .’’
The court found that Westphalen was unable to pay the
fine and restitution imposed by the department and
that, ‘‘[a]t the time of the transfers, 2018 and 2019 . . .
[he] had wound up [Triton], leaving the plaintiff and
others without any means of recovering their invest-
ments of principal.’’ At trial, Westphalen admitted that
he was unable to pay the fine imposed on him by the
department, the restitution he was ordered to pay the
plaintiff by the department, or the amount that the plain-
tiff originally invested in Triton.9 It is clear, therefore,
were on either singly or jointly along with your wife at this time?
‘‘[Westphalen]: No. They weren’t open anymore.
‘‘[The Plaintiff’s Counsel]: [They] were not open. And—and why were—
why were your accounts not open anymore?
‘‘[Westphalen]: I just had closed them and then based on the [department]
stuff, they said don’t open any other—I was advised by an attorney not to
open any other accounts.
‘‘[The Plaintiff’s Counsel]: But why did you go ahead and close the accounts
with your name on them?
‘‘[Westphalen]: I don’t recall, at this point. I just—I closed them and was
normally using business accounts and those had to be closed because I
had a cease and desist so I had to put the money that I earned myself
somewhere . . . .’’
9
The following exchange took place during the direct examination of
Westphalen by the plaintiff’s counsel:
‘‘[The Plaintiff’s Counsel]: And with respect to—with respect to your own
personal solvency, do you have the financial wherewithal to pay the fines
that have been imposed by the [department]?
‘‘[Westphalen]: No.
‘‘[The Plaintiff’s Counsel]: As to your own financial wherewithal do you
have sufficient solvency to pay the amount of restitution ordered by the
[department] to [the plaintiff]?
‘‘[Westphalen]: No.
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that Westphalen either was insolvent at the time of the
transfers or became insolvent shortly after the transfers
occurred.
Next, the evidence clearly supports the conclusion
that Westphalen ‘‘retained possession or control of the
property transferred after the transfer . . . .’’ General
Statutes § 52-552e (b) (2). The court found that the
defendant used the transferred funds ‘‘to pay various
personal and household expenses.’’ Westphalen’s per-
sonal expenses were paid primarily out of the trans-
ferred funds that were deposited into the defendant’s
account, and he testified that many household bills and
other expenses also were paid from the transferred
funds. Thus, there was uncontroverted evidence pre-
sented at trial to support a finding that Westphalen
retained most of the benefits of the subject funds after
he transferred them to the defendant. See Cadle Co. v.
White, Docket No. 302-CV-00030 (TPS), 2006 WL 798900,
*6 (D. Conn. March 21, 2006) (finding that debtor
retained actual and constructive control over funds
transferred to wife’s bank account where his personal
expenses, household bills, and home mortgage pay-
ments were paid using such funds).
Additionally, under § 52-552e (b) (8), evidence that
a transferor did not receive reasonably equivalent value
in exchange for a transfer may support a finding of
fraudulent intent. For the reasons that we explain more
fully in part II of this opinion, it is clear that Westphalen
did not receive anything from the defendant that consti-
tutes reasonably equivalent value in exchange for the
transfers. The court found that ‘‘[the defendant] never
provided any consideration for the infusion of funds
‘‘[The Plaintiff’s Counsel]: Currently—and I understand we’re debating.
I’m not saying you’re obligated. I’m just asking on a pure math basis. Do
you have the solvency to pay back to [the plaintiff] the base amount of what
he invested in Triton in the amount of $227,000?
‘‘[Westphalen]: No.’’
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into her account . . . .’’ Pursuant to § 52-552d (a),
‘‘[v]alue is given for a transfer or an obligation if, in
exchange for the transfer or obligation, property is
transferred or an antecedent debt is secured or satis-
fied, but value does not include an unperformed prom-
ise made otherwise than in the ordinary course of the
promisor’s business to furnish support to the debtor or
another person.’’ The evidence adduced at trial showed
that Westphalen received no value whatsoever in
exchange for the transfers because he did not receive
anything that he could use to satisfy or partially satisfy
a creditor’s claim. See Cadle Co. v. White, supra, 2006
WL 798900, *9 (‘‘Courts in this district applying [CUFTA]
as well as courts interpreting the [Uniform Fraudulent
Transfer Act (UFTA)] in other jurisdictions have held
value to mean the type of consideration capable of
satisfying or partially satisfying a creditor’s claims. . . .
‘Value is to be determined in light of the purpose of the
[UFTA] to protect a debtor’s estate from being depleted
to the prejudice of the debtor’s unsecured creditors.
Consideration having no utility from a creditor’s view-
point does not satisfy the statutory definition.’ [Unif.
Fraudulent Transfer Act (1984) § 3, comment 2, 7A
U.L.A. (Pt. II) 302 (2017)].’’ (Citations omitted.))
Finally, it is clear that ‘‘the transfer occurred shortly
before or shortly after a substantial debt was incurred
. . . .’’ General Statutes § 52-552e (b) (10). The trans-
fers happened periodically between September, 2018,
and July, 2019. On January 7, 2019, the court granted
a prejudgment attachment in the amount of $450,000
against the assets of Westphalen. Additionally, West-
phalen testified that, on July 27, 2020, shortly after the
transfers occurred, the department imposed a fine in
the amount of $900,000 against him and ordered him to
pay the plaintiff restitution in the amount of $367,000.10
10
The following exchange took place during the direct examination of
Westphalen by the plaintiff’s counsel:
‘‘[The Plaintiff’s Counsel]: Mr. Westphalen, is it a fair statement that on
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Thus, the transfers happened both shortly before and
shortly after Westphalen had incurred substantial debts
in the form of the department’s fine and restitution
order. He also was subject to the prejudgment attach-
ment order.
In short, the evidence presented at trial supported
findings implicating at least six of the eleven statutory
factors that courts consider when determining whether
a transfer was made with an actual intent to hinder,
delay, or defraud creditors. Thus, on the basis of all of
this evidence, we conclude that the court’s finding that
the transfers to the defendant were fraudulent pursuant
to § 52-552e (a) (1) because Westphalen made them
with an actual intent to defraud his creditors was not
clearly erroneous.11
or about July 27, 2020 . . . the [department] issued an order against you
where it imposed a fine of $900,000 to be paid no later than forty-five days
after the order was mailed?
‘‘[Westphalen]: I never received proper notice of that.
‘‘[The Plaintiff’s Counsel]: Okay. Are you aware though that such an order
has been—has been imposed by the [department] that you have been fined
an amount of $900,000 that was to be paid no later than forty-five days after
the date of the order? . . .
‘‘[Westphalen]: I’m aware of it. Yes.
‘‘[The Plaintiff’s Counsel]: Okay. Mr. Westphalen, are you aware that the
[department] has ordered you to make restitution to [the plaintiff] in the
amount of $367,000 plus interest at 6 percent no later than forty-five days
after its order that was rendered on July 27, 2020?
‘‘[Westphalen]: I am since aware. Yes.’’
11
In her reply brief, the defendant argues that the court erred in finding
that Westphalen possessed actual fraudulent intent, stating: ‘‘It should be
noted that the transfers of funds from [Westphalen] to [the defendant] . . .
were commenced . . . after this action was filed . . . . In other words,
[the defendant] was already a defendant in the foregoing action when all
alleged fraudulent transfers to shield assets were made. Common sense
would tell anyone that if you wanted to dispose of and/or hide your assets,
you would not transfer the assets to another named defendant in the litigation
against you.’’ We interpret the defendant’s argument to be taking issue with
the court’s weighing of the evidence and the testimony that it chose to
credit. ‘‘It is well established that [i]n a case tried before a court, the trial
judge is the sole arbiter of the credibility of the witnesses and the weight
to be given specific testimony. . . . [T]he trial court is privileged to adopt
whatever testimony [it] reasonably believes to be credible. . . . On appeal,
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B
Next, the defendant claims that the court erred in
concluding that the transfers were actually fraudulent
under the common law because ‘‘[t]here is absolutely
no clear and convincing evidence of fraudulent intent
on the part of [the defendant], and therefore actual
fraud cannot be found.’’ The plaintiff counters that the
record supports the court’s finding that the defendant
shared in Westphalen’s fraudulent intent with respect
to the transfers. We agree with the plaintiff.
As noted earlier in this opinion, although a transfer-
ee’s intent is irrelevant for purposes of proving actual
fraud pursuant to § 52-552e (a) (1); see Kosiorek v.
Smigelski, supra, 138 Conn. App. 727; in order to prevail
on a common-law claim for fraudulent transfer on the
basis of actual fraud, a plaintiff must prove that the
transferee shared in the transferor’s fraudulent intent.
See Wieselman v. Hoeniger, 103 Conn. App. 591, 598,
930 A.2d 768 (to prevail on common law fraudulent
transfer claim based on actual fraud, ‘‘plaintiff ha[s] to
prove (1) that the transferor had intent to defraud the
creditor and (2) that the transferee shared in the trans-
feror’s fraudulent intent’’ (emphasis added; internal
quotation marks omitted)), cert. denied, 284 Conn. 930,
934 A.2d 245 (2007).
In concluding that the transfers at issue in this case
were actually fraudulent under the common law, the
court first found, as discussed in part I A of this opinion,
that Westphalen transferred funds to the defendant with
we do not retry the facts or pass on the credibility of witnesses.’’ (Internal
quotation marks omitted.) Sakon v. Glastonbury, 111 Conn. App. 242, 252,
958 A.2d 801 (2008), cert. denied, 290 Conn. 916, 965 A.2d 554 (2009).
The trial court weighed both parties’ evidence and ultimately found that
Westphalen did possess actual fraudulent intent regardless of the timing of
the transfers. The court was free to discredit or find unpersuasive the
defendant’s evidence, and we decline the defendant’s invitation to reweigh
the evidence in her favor on appeal.
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the actual intent to hinder, delay, or defraud the plain-
tiff. Next, the court found that the defendant, as the
transferee, shared in Westphalen’s fraudulent intent,
stating ‘‘[i]t is found that any claim that [the defendant]
was unaware of the purpose of the fraudulent transfer
of the funds lacks credibility. It is found, by clear and
convincing evidence, that [the defendant] possessed
fraudulent intent and willingly and actively participated
in the attempt of [Westphalen] to shield assets and place
those assets beyond the reach of creditors, including
[the plaintiff].’’
At trial, the defendant testified that she did not notice
in November or December of 2018 that $100,000 had
been deposited into her bank account over a period of
two weeks. She further testified that this was her sole
personal bank account and that she ‘‘never looked at
[her bank] statements ever.’’ The court found that ‘‘any
claim that [the defendant] was unaware of the purpose
of the fraudulent transfer of the funds lacks credibility.’’
As the fact finder, the court was entitled to make this
credibility determination as to the defendant, and we
will not disturb these findings on appeal. See Feath-
erston v. Katchko & Son Construction Services, Inc.,
supra, 201 Conn. App. 792 (‘‘[w]e cannot retry the facts
or pass on the credibility of the witnesses’’ (internal
quotation marks omitted)). Moreover, the court, as the
finder of fact, was entitled to infer from all of the cir-
cumstances surrounding the subject transfers that the
defendant shared in Westphalen’s fraudulent intent. See
Wieselman v. Hoeniger, supra, 103 Conn. App. 600
(‘‘[T]he determination of the question of fraudulent
intent is clearly an issue of fact which must often be
inferred from surrounding circumstances. . . . Such a
fact is, then, not ordinarily proven by direct evidence,
but rather, by inference from other facts proven—the
indicia or badges of fraud.’’ (Internal quotation marks
omitted.)).
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On the basis of our review of the record, we conclude
that the court’s findings that Westphalen made the
transfers to the defendant with the actual intent to
hinder, delay, or defraud the plaintiff and that the defen-
dant shared in this fraudulent intent were not clearly
erroneous.
II
Although our determination that the court did not
err in finding the defendant liable under both the com-
mon-law and statutory causes of action because the
transfers were made with an actual intent to hinder,
delay, or defraud the plaintiff is a sufficient basis on
which to affirm the trial court’s judgment; see McKay
v. Longman, supra, 332 Conn. 417 (party need not prove
both actual and constructive fraud to prevail on fraudu-
lent transfer claim); we conclude that the defendant’s
challenge to the court’s determination that the transfers
were constructively fraudulent under the common law
and pursuant to § 52-552e (a) (2) also fails.
In order to prove that a transfer was constructively
fraudulent under the common law, a party must prove
‘‘that the conveyance was made without substantial
consideration and rendered the transferor unable to
meet his obligations . . . .’’ Id. Similarly, under § 52-
552e (a) (2), ‘‘[a] transfer made or obligation incurred
by a debtor is fraudulent as to a creditor, if the creditor’s
claim arose before the transfer was made or the obliga-
tion was incurred and if the debtor made the transfer
or incurred the obligation . . . (2) without receiving a
reasonably equivalent value in exchange for the transfer
or obligation, and the debtor (A) was engaged or was
about to engage in a business or a transaction for which
the remaining assets of the debtor were unreasonably
small in relation to the business or transaction, or (B)
intended to incur, or believed or reasonably should have
believed that he would incur, debts beyond his ability
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Cockerham v. Westphalen

to pay as they became due.’’ Pursuant to § 52-552d (a),
‘‘[v]alue is given for a transfer or an obligation if, in
exchange for the transfer or obligation, property is
transferred or an antecedent debt is secured or satis-
fied, but value does not include an unperformed prom-
ise made otherwise than in the ordinary course of the
promisor’s business to furnish support to the debtor or
another person.’’

On appeal, the defendant first argues that ‘‘there was
insufficient proof that [Westphalen] could not pay his
fines and restitution as required by the [department].’’
Specifically, the defendant contends that ‘‘[t]he plaintiff
has not proven by clear and convincing evidence that
[Westphalen] had left himself insolvent, as to an alleged
debt owed to the plaintiff, at the time of the convey-
ance(s), and therefore the claim of fraudulent convey-
ance must fail.’’ In support of that contention, the defen-
dant maintains that ‘‘[t]here was no evidence at the
time of trial to show what [Westphalen’s] elaborate
home in Easton, Connecticut, was appraised or valued
for during the various dates of alleged fraudulent con-
veyance(s) of funds’’ and that Westphalen testified to
various income streams that were not identified by the
court as sources of income. We are not persuaded.

In support of its finding that the transfers rendered
Westphalen unable to meet his financial obligations,
the court found that Westphalen was unable to pay the
fines and restitution orders imposed by the department
and that, ‘‘[a]t the time of the transfers, 2018 and 2019
. . . [he] had wound up [Triton], leaving the plaintiff
and others without any means of recovering their invest-
ments of principal.’’ Our review of the record reveals
that Westphalen admitted at trial that he was unable
to pay the fine or restitution imposed on him by the
department or the amount that the plaintiff originally
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invested in Triton.12 He further testified that he dis-
closed information regarding the defendant’s personal
checking account, where he had been transferring his
income, to the department because of the pending
investigation against him, but by the time he had done
so there was only $2696 remaining in the account.13
As a result, the court’s finding that the transfers left
Westphalen unable to meet his financial obligations was
not clearly erroneous.
The defendant next claims that there ‘‘clearly was
evidence that monetary consideration was passed
between [Westphalen] and [the defendant] in response
to [Westphalen’s] deposits in [the defendant’s]
account.’’ In support of this claim, the defendant argues
that the court ‘‘failed to make a finding of fact as to
what [the defendant’s] income was’’ and states that she
invested ‘‘$750,000, by way of her personal inheritance,
into the Triton fund,’’ suggesting that the transfers at
issue could have been made as a repayment of her
investment into Triton. The defendant’s arguments are
wholly without merit.
In support of its determination that the transfers were
made without adequate consideration, the court found
that ‘‘[the defendant] never provided any consideration
for the infusion of funds into her account and used
funds from that account to pay various personal and
12
See footnote 9 of this opinion.
13
Westphalen testified as follows during cross-examination by the plain-
tiff’s counsel:
‘‘[The Plaintiff’s Counsel]: Isn’t it a fair statement, sir, that in the—in the
approximate year before the submission of this financial affidavit [to the
department], approximately $260,000 of your income had gone into this
account . . . ?
‘‘[Westphalen]: Well, yeah, we’ve agreed to that. Yes.
‘‘[The Plaintiff’s Counsel]: Okay. And so, but as of the date that you actually
disclosed the account to the [department], the balance in there was only
$2696, correct?
‘‘[Westphalen]: Well, yeah, it’s right there. Yes, correct.’’
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household expenses. She also deposited her own
income into the account.’’ The defendant’s argument on
appeal that her alleged investment in Triton constituted
adequate consideration for the transfers at issue finds
no support in the record. Westphalen testified that the
transfers to the defendant’s bank account consisted
solely of funds that he received for professional services
unrelated to Triton and that he transferred the funds
because of the pending department investigation. Thus,
based on Westphalen’s own testimony, it is clear that
the transfers at issue were wholly unrelated to the
defendant’s alleged investment in Triton.

Last, the defendant argues that ‘‘it has long been held
in Connecticut that between a husband and wife ‘love
and affection’ is valid consideration,’’ citing to Mid-
dlebury v. Steinmann, 189 Conn. 710, 716 n.3, 458 A.2d
393 (1983); Varley v. Varley, 170 Conn. 455, 460, 365
A.2d 1212 (1976); and Candee v. Connecticut Savings
Bank, 81 Conn. 372, 378, 71 A. 551 (1908). At the outset,
we note that none of the cases cited by the defendant
stands for the proposition that love and affection may
constitute valid consideration for purposes of defeating
a fraudulent transfer claim under the common law. See
Middlebury v. Steinmann, supra, 716 n.3 (finding inade-
quate consideration for transfer of property because
‘‘[l]ove and affection . . . does not provide legal con-
sideration which would support enforcement of a prom-
ise’’); Varley v. Varley, supra, 460 (‘‘[c]onsideration of
love and affection is not legal consideration which
would support enforcement of a promise’’ (internal quo-
tation marks omitted)); Candee v. Connecticut Savings
Bank, supra, 378 (‘‘[a] good consideration is that of
blood or natural affection, and a gift made for such a
consideration ought to prevail unless it be found to
interfere with the rights of creditors and purchasers’’).
On the contrary, our Supreme Court has long held that
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Cockerham v. Westphalen

love and affection does not constitute adequate consid-
eration for purposes of defeating a fraudulent convey-
ance claim under the common law. See Redfield v. Buck,
35 Conn. 328, 337–38 (1868). In Redfield, the court held
that an insolvent grantor’s conveyance to his sister of
all of his property, in consideration only of love and
affection, was a constructively fraudulent transfer. Id.
The court stated that a transfer was constructively
fraudulent if it was ‘‘made by a grantor who was largely
indebted and insolvent, and the property conveyed was
all or nearly all he possessed, and the conveyances were
wholly gratuitous and without other consideration than
love and affection . . . .’’ Id.
The defendant’s argument with respect to the statu-
tory fraudulent transfer claim under § 52-552e (a) (2)
fares no better. To prevail on a fraudulent transfer claim
on the basis of constructive fraud under § 52-552e (a)
(2), a plaintiff must prove that a transfer was made
‘‘without receiving a reasonably equivalent value in
exchange for the transfer or obligation . . . .’’ General
Statutes § 52-552e (a) (2).
‘‘[T]he drafters of the UFTA believed that value must
be considered from the standpoint of the creditor’’;
Cadle Co. v. White, supra, 2006 WL 798900, *9; and
the commentary to the UFTA specifically states that
‘‘ ‘[v]alue’ is to be determined in light of the purpose
of the [UFTA] to protect a debtor’s estate from being
depleted to the prejudice of the debtor’s unsecured
creditors. Consideration having no utility from a credi-
tor’s viewpoint does not satisfy the statutory definition.
The definition does not specify all the kinds of consider-
ation that do not constitute value for the purposes of
this Act—e.g., love and affection.’’ Unif. Fraudulent
Transfer Act (1984) § 3, comment 2, supra, 7A U.L.A.
(Pt. II) 302; see, e.g., United States v. West, 299 F. Supp.
661, 666 (D. Del. 1969) (‘‘[s]ince ‘the question of fair
consideration as it pertains to an alleged fraudulent
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conveyance must be determined from the standpoint
of creditors’ . . . it is clear that no fair equivalent is
exchanged when the conveyance is simply for natural
love and affection’’ (citation omitted)).
Consistent with that commentary, federal courts in
Connecticut and elsewhere have held that, in order for
an exchange to be of reasonably equivalent value under
CUFTA and other states’ versions of the UFTA, it must
be something with monetary value capable of satisfying
a creditor’s claims. See In re Rose, Docket No. 17-21333
(JJT), 2019 WL 1410633, *4 (Bankr. D. Conn. March 26,
2019) (‘‘Only consideration of substantially equivalent
value leaves the debtor in a financially similar position
after the conveyance. A conveyance made for consider-
ation of nominal or no monetary value leaves the debtor
in a much weakened financial position which hinders
his creditors. This is precisely the scenario the [UFTA]
attempts to prevent. Recognizing consideration of no
monetary value as a defense to a fraudulent conveyance
would emasculate the statute.’’ (Internal quotation
marks omitted.)); Cadle Co. v. White, supra, 2006 WL
798900, *9 (‘‘[c]ourts in this district applying [CUFTA]
as well as courts interpreting the UFTA in other jurisdic-
tions have held value to mean the type of consideration
capable of satisfying or partially satisfying a creditor’s
claims’’); Cadle Co. v. Jones, Docket No. 3:00CV316
(WWE), 2004 WL 2049321, *6 (D. Conn. August 20, 2004)
(‘‘in considering whether fraudulent intent exists, the
relevant inquiry is not simply whether the debtor
received some type of consideration, but whether that
consideration was in the form available for execution
by creditors’’); In re Ogalin, 303 B.R. 552, 559 (Bankr. D.
Conn. 2004) (‘‘the relevant inquiry is not simply whether
[the debtor] received consideration, but whether that
consideration was in a form available for execution by
creditors, i.e. an assessment of the extent to which such
creditors were deprived of the value of the diverted
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property’’); In re Kennedy, 279 B.R. 455, 463 (Bankr.
D. Conn. 2002) (‘‘The only other form of value suggested
by the [d]efendant was her provision of household and
other marital services to the [d]ebtor. The [c]ourt
rejects this suggestion . . . [and concludes that] such
services were in the nature of those naturally and tradi-
tionally exchanged between spouses without consider-
ation, and hence provided no basis of exchange value
for purposes of fraudulent transfer analysis.’’); see also
In re McFarland, 619 Fed. Appx. 962, 975 (11th Cir.
2015) (‘‘[t]his [c]ourt has held that ‘love and affection’
are inadequate consideration to be reasonably equiva-
lent value for a transfer’’); In re Marlar, 267 F.3d 749,
755–56 (8th Cir. 2001) (affirming bankruptcy court con-
clusion that ten dollars plus love and affection did not
constitute reasonably equivalent value as matter of
law); Tavenner v. Smoot, 257 F.3d 401, 408 (4th Cir.
2001) (when interpreting similar statute, 11 U.S.C. § 548,
‘‘courts have consistently held that a transfer motivated
by love and affection does not constitute reasonably
equivalent value’’), cert. denied, 534 U.S. 1116, 122 S.
Ct. 926, 151 L. Ed. 2d 890 (2002).
In the absence of any evidence in the record to sup-
port the defendant’s assertion that Westphalen received
adequate consideration or reasonably equivalent value
for the transfers, we cannot conclude that the court’s
finding that the transfers were made without consider-
ation and not in exchange for a reasonable equivalent
value was clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.