presumption may it says and i tried it on page twenty one of my brief the presumption may only be overcome with clear and convincing evidence i've also got this report that says unmistak weapons now when we go beyond that we're here on appeal course and everybody agrees there the standard on appeal is contrary to the manifest weight of the evidence clear and convincing it convincing an affirmative evidence and that goes on to say while a valid statement provided the trial court with a recent balance for each of the accounts they fail to satisfy the tracing requirement now in this case we had if we look in the checking account i have that if you want to look at it at age twenty seven of my brief and there were only two statements brought in from the  the things we say that this is not been shown to be orally by clear and convincing evidence on their property is that mr o'brian could not identify deposits and i cite several of them there are a lot of financial records in this case i tried not to twelve which he believed were commission checks from his employment which is marijuana and that the big one that i always like is there's a deposit of a hundred forty one thousand four hundred fifty nine dollars and forty two cents on june twenty fifth two thousand and thirteen now i don't know about you folks but that's a lot of money for me and this was within about a year before this case was tried and mr o'brien could not recall the origin of those funds joint federal and state tax refunds for two thousand and eleven twelve being deposited in that account he has transfers from the hickory point bank going into that account all of which in my opinion  and so even if he did put some non medical money in there then that is total co mingling and i believe that that becomes america's money the money market account he sure seems like the trouble with most of the that is your honor i cannot disagree with you and i i always wonder about our statute when we when we say contrary the man of this way nobody could read it reach it down for a decision and i'm up got to be by convincing evidence for trace and i have for example then on the other e m c account we have heard testimony that when i have certificates of deposits come do i would ask the money in the account somewhere around twenty thousand dollars that was an investment account that was sort of cours well i think that was about forty yes hundred forty thousand dollars other than that that's basically all she are a summary document i didn't have a chance to look at the record in this case and i will do that after the argument but unusual is there a document that summarizes the assets the judge's order doesn't give any amounts or values or anything no it does not but did you of a position i've done that we have for the values of the vehicles there were an eighty eight printouts attached that would be the same for the boat we agree that his house was  property other than the house non marital property and to remand it with directions that it is marital property and to be appropriately divided under section five of three so you say you correct ok and that because there's been no division under the provisions of five o three i believe that it's up to the trial judge them to make an equitable division of the action what about the farmer and i thought he bought a farm and with the land there was no tracing of the house or money going into it there were no oh great records show that these were correct they were round figures fifty thousand dollars forty thousand dollars and he placed it into the name of the the only evidence we have for years we have need a title policy showing it was held in the name of t whether the information of the trial was summarized and i believe it was mr byers brief i kidnapped bill back you know the time of trial and research what all of these probate patients would show i'm not sure i even knew where the cases or the states would have been probative or whether there was even the smallest state's provision or anything of that nature not your position is there had to be something more than just the test more correct and that we should understand that the testimony was that he did not include her in any of her or any other show financial decisions she did not have any knowledge of how title was shall or anything else it was done out of secretive so it's rather impossible for us to go back and orally contradict are the practicality of this is the trial judge heard all of the evidence one of the things that has kind of been over looked maybe in the argument in advance so far is that these parties this is not a first marriage for mr o'brian this was his third marriage and at this point in time mr o'brien was well aware i'm sure fact in th trust to put in his non marital property as it was acquired over the years one of the things that that has kind of been overlooked that in the evidence of these parties were financially separate from day one she earned money she worked she had her own bank accounts as mr just related or in his argument and he had his own bank accounts that was where they deposit the marital money week yes that's a marital account and then he also had the other accounts that were the old ryan trust accounts which is where all the non marital money was deposited over the years and  h if you look at art is one of the other things you've got to remember my client was never graduated from high school he was earning at the time of his divorce from this are exhibit a it's an hour he was fairly in eleven hundred dollars a month as an income and he had two kids from his prior marriage that he was pain child support on he did not have the financial wherewithal to accumulate money to buy a farm ground or anything else just a few years later if all the if you look at the practicality of the situation the only way my client ever accumulates any kind of assets like this is through inheritance he had and it was the value of the total assets including non marital given to your client that you know i do not so i don't believe we ever had an appraisal of the farm ground my client's farm ground i don't believe that was ever a price so i don't think there's ever been a total amount of gas that went to my client in the exhibits we have summarized all the accounts and therefore i don't know that i've ever put a dollar sign to all of them but all of the individual accounts are put forth in the exhibits i cannot answer that question to the court this morning i guess the point the total of heritance he had was somewhere in the neighborhood of one hundred fifty pounds at different times he and  also inherited a condominium in florida from his father see first he inherited from his grandmother and then a grandfather was an end of ninety thousand yes and then he inherited from those mother and i want to say that sixty seven thousand and then he inherited from his father in addition to the cash that inherited the inherited that he and his brother inherited of our a condominium in florida his brother paid that testified to to this by the way so there was more than just my client's testimony but and then eventually and they set up a separate account to run the florida condominium him and his brother and then eventually they sold the florida condominium and that every time that he dealt with this and all the income from the farm went into the the trust checking account into this where what's but it at different times it was rolled from one bank to another as banks bought themselves out at one point in time it was in citizen's community bank at one point in time it was p and c before that i believe it was a militant bank the testimony excuse me the testimony is there that  from time to time he would roll them forward into different banks different banks got bought out at the end when the judge just looking at it which can and p and c the a p n c counts the seventeen o five in the eighty five seventy seven were twelve considered is trusted yes and they were in the trust name your honor and in fact there was actually several different of those two accounts there was one is never any evidence in him that was contrary to what we asserted because the facts of the case are the this is the way the parties operated he was totally so we all know sitting here that that doesn't care because his her earnings for the marriage and i and the presumption operates against your client and the burdens on him to show by clear and convincing evidence that the property is not all that is true all of that is true and as we set forth in our brief that non marital property unless there is an intent to make a gift to the marriage remains its non marital status what what is the clear and convincing evidence that you produce to  as as reflected in his financial affidavit the only way you can accumulate these things as a practical matter is through inheritance and his testimony was that that's where he got money that's the original source of the money and that you roll it forward from time to time from one account to another tape he introduce any documents or bank records to trace fair where the money that's i mean what is the evidence other than his testimony other than his testimony there is no evidence the cost i believe was eighty six thousand dollars i might have been eighty four but i think it was eighty six thousand dollars and there's no mortgage on it never has been a mortgage on it he paid eighty six thousand dollars out of the ninety thousand dollars city it inherited from his grandmother and his grandfather that was his testimony that you this was there's no way that he could accumulate that kind of money earning eleven hundred dollars a month sixty at the end but back in the time that we're talking about he's he's earning eleven hundred dollars a month there's no way any paying child support out of that to two other kids from the prior marriage  cash for that he paid cash his farm income that was the way these parties operated as is the testimony of each operated they lived off of their earnings everything that the farmer everything that his non marital monies earned earn in their earnings everything that we're talking about is something that has come from things that were not their earnings what about mr house claim that your client testify that the raymond james account he believed was and convincing i understand that that that can be an issue but if you look at the overall picture of all the of those that was green and not just the south side yes i understand but in that what what his testimony was was that he rolled things forward from one account to another any couldn't remember which account it came out of that's not saying he didn't know the original source what the original source with these was either his farm income his condo income or is inheritance that he received and that's all in there and that's uncontroverted too so my guy didn't start out with nothing he started out with a house that was fully paid for from his prior marriage is he started out with assets that  had no lean on him they were investment monies from his prior marriage so he didn't start out with nothing but and all of that has rolled forward and when he testifies i don't know which account it comes out of doesn't mean he didn't he isn't saying his non marital he's sorry that it was marital money he's saying because i've rolled these accounts forward since one nine hundred eighty three i can't tell you which one it was rolled forward out of that money but he couldn't recall it he couldn't recall the specific count that was rolled out of yes he had different c d s that came do it different times and that's exactly true he did testify to that  but the source he did testify was his non marital money that it came out of his inheritance or his farm ground or his condo earnings he could eat also couldn't tell you which one of the c d s was which cash  cd could have been but that wouldn't show the original source of that cd the the original source of all of this is is old that that we could have showed that particular cd be in cash then but then all then th a positive showing of intent to make the gift of the marriage good if it starts out non marital it stays non marital and i cited that case on page fourteen if you i'm just saying if you clea convincingly show property was not here at all that's where i have no problem with that that's true what what judge corey allen could have done that would have been helpful to us was to say you know i've heard the evidence in this bank i do know that when we were preparing for trial i sent my client out to try to gather thanks and we got what we could get that i do know i can't tell you that it was reported back to me that these are as much records as we can get so we went back to try to do is just so old that we couldn't get it and i appreciate that that may not be technically in the record and i apologize for saying it to the court if it's not in the record but what we tried to go back and get things from from twenty five years ago and twenty five years ago just to hard to get stuff right well seventeen seventeen years ago i mean some of these some of these things were pale along death certificates of deposit that he got from his grandparents or not it would even have been a forty state but we couldn't find those we tried we honestly tried to go back and find things that we knew it's you know the burden still stays with you and that's why i think world testimony is has been since found to be sufficient that's why i think that courts such as this has recognized that there are things sometimes you just can't go back way back in eighty three forty three thousand grandfather in eighty six fifty thousand and i have to go back and reference when this farmer was purchased and where that body was an electorate of his father died ninety eight he got sixty seven thousand three hundred ninety and then a condo was sold in two thousand and ten which doesn't factor into much of any of these things because they were all acquired before that forty three thousand want to shovel from his mother on page