son died she was very close to it and as a result of those combinations of those various things psychologists through various conclusion that she went her mood swings became more and more i would term this being more aggressive in the sense in the sense that she filed the petition for dissolution of marriage and and was very depressed about even separating from her husband as well so we had the previous mood swings back in march two thousand and eight we had the son back in july of two thousand and eight and then that disagreements with the husband and the ultimate dissolution of marriage  as a result of that her hundred thousand dollar lifestyle and earnings potential gradually decreased and i put in my grief there was a  around twenty thousand twenty four thousand she had received e mails from her employer who she had worked with for twenty five years to say look there's a thirty thousand dollar threshold that you have to sell this business every year you're not meeting that threshold there's a warning letter and when she got this warning letter it all went even further south i result of her depressive moods and a result of the son dying and the breakup of the marriage and everything else the psychologist basically said it's questionable whether or not she will ever gain bac was aggravated by the sun then the evidence shows that decrease in her salary potential her only capacity even became greater the employer to chip in with a twenty five year recognizes as well and the husband was making i said as are several hundred thousand dollars as well he got fired or let go from his job because of some misconduct on his part he picked up another job with people in insurance and asians are that it was the same type of selling into east cetera that he was he had a good potential there to get back up to his hundred that didn't need not even have hot water and it's kind of and like an office almost building and she was there for a month then she got into a regular part but that's how her mindset was getting out this marriage or depressive moods and everything else so we believe that there's a real abuse of discretion by the trial court and not awarding terminators we asked the court for twenty five percent of his salary that he would have been making had he not committed that misconduct and in addition we believe he's probably going to make a hundred court not to work the second thing that happened was that there was a life insurance policy on the c stuff the c son head there's evidence shows that all mom and dad paid premiums on that life insurance policy as our argument is the judge said ok in lieu of maintenance we're going to give you the remaining portion of this life insurance policy our position is that life insurance policy should come to her i think it was all paid u to college should pay some other stuff but the second item if they have transportation properly which i think you're a little strange but we believe there's a use of discretion i think if you pigeonhole the facts of this case into the the hard case occurred case and talk about the standard of living which they enjoy and now my client because of the situation where she's basically lost her job was on  and which we provided for judge casey the smith case is a case in which there was insurance for a man who was a pilot for united airlines the exceptions there is no exception in that case here but in that case mr smith was  third party entity that produces the contract after the the contract is complete in this case by the death of the son in the smith case by the fact that the pilot had a heart attack and could no longer had his license to fly which was what was in church then the payments made and as the statute points out as early as this points out to this is  a case in which the proceeds from that particular policy came when the parties were still married doesn't matter whether this is my husband because of a situation and the court said that in its analysis there are other states that have dealt with this in other ways but we don't have that flexibility because of five of three and the exceptions that are listed in five  and we don't see one there which satisfies us that this is an exception therefore it's marital property and judge casey i think took the same view that there is over and i thought we established that this was a gift from the parents the very way they bought this insurance policy for is that correct yes ok here it was that there it's assets who with not hear anything but the testimony of the wife and the only other thing the judge ac saw was the exhibit which is essentially what counsel has just said which judge casey edited and treated as hearsay and pointed that out in his order and by impression from what happened is that judge e my impression from what is in judge bases order and immersion first was what if you argue i argue that when that number was on the letter was hearsay and it shouldn't be admitted if you presented the contrary evidence we don't we have no evidence to the contrary other than that she had been working and she had been producing up to two thousand and nine when she fell short by about ten thousand dollars in terms of the requirements right right that's correct so whether it was disability due to two broken feet or a mental condition that matter she can't work anymore she's on disability right she's on disability temporarily there's no again there is no testimony other than the letter as to whether this is permanent whether she has no longer any ability to make a living that your years old she has the ability she has had the ability to make a living for twenty five years so based on time to experience there's lots of reasons a plea to be optimistic that this is a condition that is transitory and she'll be back on her feet maintenance during her bad times and which is better assuming that she's able to get better reconsider that certainly would be an option but it wasn't the option marital property treating the proceeds from the insurance as marital property as well as somewhere between thirty and forty thousand dollars out of that course if we agree rich we insofar as my  appellant's brief are cases that ever that we all know and they stand for propositions that we don't take issue with but they don't fit the facts of this case i don't know what the mr crocker is talking in the first case that he cites about you were outraged that the trial court could do such a thing and that this is just not that  this is not a case where she gave up anything in the marriage over thirty years so he could doing back she was at this longer than he was i don't know i don't remember what he did before  started selling her private but that's not the case per case you got a case of a woman who stayed home went to work late in life had no skills that's not the case here drooler judge harmon says the maintenance cases have been all shapes and sizes of all kinds of fact patterns and i certainly agree with that because our fact pattern doesn't fit any of these cases  again what what counsel met when he said in his brief the petitioner was already on disability this was resolved before that just judge bases position i believe is that the  manifest weight of evidence he didn't give much weight to the letter from the from the trader and apparently he didn't give much weight to the testimony by the wife the petitioner but as i say the argument here is present and future earning capacity of each party was shown to be grossly disproportion isn't that isn't the case we don't know that if she recover she seemed it seems to me she has the the ability to make money just like he does the argument that he has money to pay it won't be of any difficulty won't have any difficulty as there is in the documents two things in the in the record are is no compete clause that he has a thriving which keep him from selling anything during the time he works for for the terminated by thriven which by the way was certainly not something he wanted to happen after working twenty years for them and raising himself up a level that he was was making when he was is that he made twelve thousand dollars me which is which is even more important is the fact that she was on disability she was she had all this background different information stored pressure else going straight down and so