may please or counsel the issue in this case is the singular one and so i'll be relatively brief we are asking this court decide whether a personal injury settlement constitutes proceeds for the purpose of income rather for the settlement someone gets who has just come over the figure fifty thousand dollars for pain and suffering well i think first of all the problem you know that we had in the case was as a practical matter parsing a settled extent that it enhances her ability to support a child i think then the court can in its discretion determine and take that into account that for example there was some degree of pain and suffering and therefore some portion should we shouldn't necessarily allocate the entirety say well fifty thousand dollars let's say if i'm understand the court hypothetical you're saying that fifty thousand was received and the entirety was for pain and suffering there is no component for lost wages or that's a different corpus of that iraq which you say there's fifty thousand  suffering under a thousand who are screwed so i think the court can then determine in its discretion how much to award in child support and take into account that some portion was pain and suffering and it may choose not to award as much as it otherwise what have they found that but that's something that i think the trial court would be able to take up and in its discretion in determining the proper amount of support tool so if someone uses the proceeds  often increases well after retirement it permits you to have a life after retirement of course the house actually gives you shelter for the remainder of your life  restoring i mean what we're really talking about is the way that we pretend our tort system makes people whole and does that we know that that we say this man of money is to make you whole as best we can judges to make value judgments about people who receive salad once and if they use the money wisely obviously while we should make them pay child support right now because they used it productive way that will make their life better which is great versus someone who blows it you say well you surely if you're imagine your joke is that really we want that amount of discretion in the judge's hands so let me make sure discretion and say that that is that's different than just having money and deciding to spend it on frivolous things or even daily things that kind of debt money i would certainly be tempted to i was a trial judge for a long time if the rule wasn't if there wasn't a rule i would have said that's pretty thoughtful in the tour to do that because you won't do be a burden on other people when you're older because you'll have a retirement life versus the person who instead of buying of a modest car buys a dye job then sure i'm going to look at i met look at that differently and i don't know that you want me to you being the practicing bar not you individually i think generally speaking with these cases we are we already invest that the trial courts with a tremendous amount of discretion on a variety of issues that are far beyond ripe this case now here i think the whip the question is is what do you do with as you put it the fiction that we put out that a tort recovery somehow replaces something in this case it's undisputed mr lawson suffered some significant injuries and she received a significant amount of money and in compensation oh no i think the i am comfortable with the idea of a trial judge having t discretion to make a value judgment if it's a value judgment i don't know necessarily i suppose i can see a situation where a trial judge says i think you waste that money so i'm going to nail you and i think you ways you use that money wisely so i'm going to protect you but i would rather have that situation than one where we try to especially in this case where i believe the record was clear about this and we had a tremendous difficulty trying to parse sure what the settlement is because that's typically not broken out in a case that's not tried i would rather give the judge that discretion to to make that decision rather than tie their hands by saying no only whatever to me phrase that better i don't mean we do people trying to avoid breaking it down just because it's simpler or because they're a real inhere any means a specialist practitioner in the area of personal injury but what i would say in my experience with personal injury cases is that it typically when you have a case that settled without the involvement of defense is settled with a insurance adjuster themselves it becomes a numbers game the basis of your demand that you make as a plaintiff's attorney is going to be able to cite as much as you can to justify as large a demand as you can right but when that comes back it becomes a numbers game i don't think that i've ever and i i think i've handled maybe a dozen personal injury cases in my career i've never i don't believe had an adjuster or defense counsel come back and say well no we're going to reduce you not because we're just going to in ascended a lower number back but i know that we don't think she made that much so we're going to reduce it by this much we think that the pain and suffering from this injury is worth less and therefore i'm going to offer advice it's more along the lines of here's the mom on here's the amount of money or you know hey we took those depositions and man did that not go well for you here's our new offer her and so in that sense i think it is as a as a practical matter i don't think it becomes a real breakdown in the practice of personal injury law where you see this is the amounts that you're going to receive for each individual category now i will say i would separate out those cases that involve people that are subject to a medicare set aside and those rules because in the context of both workers compensation and personal injury cases you can have if you have someone that is going to be eligible for medicare or currently eligible for medicare c m s and the federal government requires that you break out a portion and set aside a portion for future medical expenses and as i understand it i've never done the actual calculations because i think it's entirely the province of specialist accounting firms that look at medical records in a case and say this is the future spect of medical expenses this is the amount that we're going to say is going to be set aside for those expenses and in the context of this case to bring it back i think money set aside in a in a medicare set aside or if you provide an a in an injury settlement for example or a separate the new would be payment for the purpose of medical expenses those would be excludable i think clearly because they're set aside for the purpose of future medical expenses they're not nat money coming to the recipient and that's where i draw the distinction and in so inserted like a lawyer so i can question w seems to be what portion of this award actually compensated her for loss of wages since your income so to speak which we know we don't necessarily have a definition statute is that the approach we should be taking i can't help but think as a parent in a wide open that when you get money into the household the household uses the mine so is that the approach we should be taking now that's that's precisely our argument is determine whether this is income for the purposes of support and as we argued in our brief the rogers court and subsequent decisions have said no that that is not the proper focus the proper focus is what's the effect on the recipient so here in answer of your question no i think the proper focus should be on what does it do to the family what is it do to the recipient does it make them more able to support a child are less able to carry them and i all these is for pain and suffering awards to awarded a tort case is income assigned my medical expenses if you have a person with severe injuries we know they're going to need this or that that should be protected but other than that yes that's exactly what i was going to say is that essentially what it would be looking at is the not recovery whether it's from pain and suffering whether it is lost wages whether it is property damage whatever the case may be all of that it's a lump a person has to travel to to get to that but let's say they're in quincy illinois and they have to travel here just springfield or down to st louis for specialist medical care those out of pocket expenses incurred in that travel i think would be properly exclud going to spend on buying food versus the it seems to me this is the kind of issue which would come up with some regularity going over on the fifth district of the policy very body this hasn't been modified or address so far as i can tell no you to what extent should that serve to inform us place and those two cases take a very different approach by my view would be that also subsequent to the bill in the way it was the rogers case and the subsequent cases that all focus on the effect on the recipient whether income for child support purposes in this case mr mom danny admits in his argument that when you get the award if there's no trial there is no breakdown of what monies are for pain and suffering for future medical or future loss things of this nature in this particular case ms lost and did receive a large personal injury award at the time she was not working a lot she was in school so she was not providing a large amount of support for her were to present a defense in the trial or if this rule existed at the time the trial where it said we're going to consider all this many a thing and she wanted to present a defense and say now i'm going are in the physical job maybe i'll have arthritis in my wrist in twenty years i don't know this money was supposed to help me for the future but i spend it wisely or not i don't want those things considered holding them for child support and we get into a situation where it's speculative as a practitioner i don't want to be hiring medical experts to come in and try and form some sort of speculative opinion that my client may have medical issues that are unforseen at the time that she received the award if she had a hand custody of her child and she were the one responsible for hearing the child with the child have been booted from thence recovery i think so i think at the time she did not the child should not that's a tough question i think i guess my response to that would be that the state of the law the time the case was decided if we didn't have section five zero five puts to determine net income and they had different things that the court could look at i think they cited in my brief five zero five eight which talked about medical expenses and things like that i think the child's situation was improved even though he was not in her custody obviously she does have parenting time so for her to be able to purchase a home and make that investment that she can build wealth on in the future is certainly up to the child  regardless of which parent he lives with but i think they can look at those statutory factors under five zero five and look at what with this the child standard of living what does a parent have to spend on medical expenses she would still have those expenses whether he looked at her not right thing it's the same on both sides now what about give warning here intense with those be considered something child support should be based on i think under advisors yes and i think that's why it's tough to develop a bright line rule and say ok we're going to do for every time that i have to be it's really tough to have a broad definition and in some cases it's going to be appropriate in some cases it's not i like collecting child support for folks as much as mr mom johnny does i'm sure if i have a parent who owes tens of thousands of dollars and they receive a large inheritance yeah you can bet i'm going to argue about if they receive a large personal injury so i can i think it just needs to be on a case by case basis i think under a badger court can say and i think that's what i've argued in my free but part of a personal injury maybe if we have a brilliant neurosurgeon who makes millions of dollars a year and someone smashes his hand then i think yeah at the level that he was supporting a family in a divorce or paternity aereo then yeah i think it may consider some of that if you have someone there's just so many variables you can have a person that gets injured there's no insurance coverage and they're not even close to being made whole sure what your position is i was  limited to what you can determine was a payout for lost wages that's not your position i think that that would be the best way for the court to look at it would be to recover what the parent was making if they were out of work based on injuries and i think that makes complete sense but then to go into that pandora's box well even if it was their pain and suffering how much did they suffer how much pain that may have been in the future that's where it starts to get a little murkier for me unless you just say that you can consider it you don't have to figure out how much pain and suffering just that it is part of the settlement you can have to pay child support on right and  bit is you know we focus on the whole lost income or to compensate them for lost income but yet to give an inherent to those can be considered obviously they have nothing to do with law at the time in this case the five and under five o five when they set out the statutory factors i think that back creates enough of a guideline for the trial for in considering what they want to consider as income per capita for you if the definition clear that judge her did not feel that he had discretion he felt that and correctly he was bound by the decision and bill in a way that did not consider anything other than what he determined to be income for the purposes of support so based upon the argument that both parties  only income only wages he could not have decided well there's i can't remember the exact not twenty three hundred dollars and lost wages i'm going to say that fifteen thousand is is income for the purposes of support and then i'm going dollars he didn't have that discretion did not he was bound by the way so that if you take the a pelleas argument then it would at least go back to him for a determination on how much of that amount you consider as income through based on the information that you were able to present a record based on the information i don't have any issue and we didn't have a shoe with specifically that that determination i think sure certainly there was evidence presented that the demand that was made it included a component of future lost wages that was in excess of the amount that was established as actual lost wages ok the court just used the actual lost wages i can't say that i think that that was of his discretion because he couldn't and i don't know that he articulated this on the record but i think it's easy to say that well speculating about those future lost wages would be inappropriate i don't have an issue with his determination of the wages or issue is simply that the entirety of the income should be at least available to the court and as far as that goes i think again i think it's appropriate to just stick this ball in the trial courts lap in terms of determining set aside money for future medical expenses if if the recipient puts it in an ira the court can make that determination hey this is a twenty year old that is is putting this money into an ira that's never going to benefit a child as opposed to say a fifty five year old who puts the money and ira and we're dealing with a two year old child that irate money when it's paid out could well be used to pay child support award the court may take a different view of that and all of that