yes good afternoon mrs gino what you may proceed thank you your honor make please the court and counsel my name is drew hickey and i court not allowing mr geysers motion to continue as a little background here mr geysers attorney mr bast filed a motion to withdraw and that motion was heard about twenty days before the trial they motion was agreed by mr bass and mr geyser that mr basket withdraw and mr bass was allowed out of the case and trial was set that day twenty six days later and mr geyser stated later in the proceedings that he believed he would have the opportunity to obtain counsel and that the trial would be continued that three day trial that  the trial would be continued and he would have more time to obtain counsel not that he would have to proceed process he didn't think twenty six dollars news would be sufficient time for him to obtain counsel he did know i'm sorry he did believe that was sufficient time but i believe my understanding after he tried to find counsel he couldn't get anybody to take the case that close to trial this he i understand it you're starting with a motion to continue but i wonder is that where we really should start of me in the trial court in denying the motion to continue discuss the how mog this case had been going on and i understand you indicate your client thought he was going to be able to get a but what was that based on and wasn't it incumbent upon yeah to clarify that truly was going to be an opportunity he had to have more time my understanding from the transcript is that he believes that that from his attorney and you know we don't have a record of that conversation so i'm not sure about that but he believed from his attorney that the that the thirty day trial would be continued and if he had that assurance i don't think he would have taken that when at the motion to a trough hearing but we really have nothing to prove that at this point right i don't believe there's anything in the record on that except that when he filed his motion to continue he did say that he which it was filed a week before trial he had tried to obtain he stated that he was uncomfortable proceeding with trial and he was a comfortable proceeding pro se i think the argument would be completely different and there may not be any argument on appeal here if he would have said i want to fire my attorney and i want to proceed pro se but he didn't he stated all along that he was uncomfortable proceeding pro se and that he thought he would be able to obtain counsel and it was kind of one of these too little too late when he spoke to attorneys and  to obtain anybody because there was so much evidence on both sides of the case and likely schedules didn't permit i mean that part isn't in the record either but i think that the  s that could be made or or the the concessions for him is once he realized he wasn't going to proceed with counsel the traffic court could have there were several avenues available to the trial court one was the co civil procedure section one is it to one thousand and seven for good cause shown and i think in this case there were so much evidence that needed to be presented and it needed to be presented competently for the trial  compliance discovery is it possible that the trial court rooms of the opinion that your client really was just trying to obstruct the process and and had not been compliant  should not be something that certainly i think that i think that's possible but the evidence that i think counteract that is that my client had counsel conscientiously the entire time  he was served with the petition and took two thousand and fifteen he maintained an attorney that entire time and he was diligent and having counsel he even showed up to court a lot of times at status hearings and things but his present presence may not have been necessary but he showed up and was present so he was there you know participating in the proceedings coming into court and i believe that that shows that he was diligent and that the delays i think the record shows the delays were on both sides there was a lot of evidence back and forth there was a custody of our you waiter that takes time so over the three and a half years it was not only the delay was not only attributable to mr geys and that's where i think the recent case comes and that where if there is no delays attributed only to one side or either party that the motion to continue you know should be  considered to be granted i think it would be different if you know my client had changed counsel several different times and and not shown up to different hearings and not shown up to motion hearings and things like that but really the record showed that he was diligent and for showing up for hearings and keeping his counsel or a diligent student showing off there's diligence and doing what you're supposed to do i mean three and a half years after the internet appearance and then was allowed to withdraw we're still for your client's perspective at the beginning of a case i records show that your client knew as of april th that he would be without an attorney and yet it's all the way up to i think almost twenty six we're hearing  financial questions is actually heard and that's what's actually before the court that the financial issues so he had if i read the record between april th until august th to get an attorney and he didn't do itself isn't that a problem for you when you argue that the motion to continue should have been allowed in that the recent piece of discretion the proper not doing so i think that defeats your  then that was twenty six dollars days before the trial so the actual withdrawal was heard twenty six days before the family travel issues began so the frontal responsibility issues now my client filed his motion a week or more that trial was that again and my argument here is that he is a pro se litigant he's proceeding on his own he brought the motion at at the hearing which was the it was the friday before so before the parenting time trial begins so at this point his motion has been denied several different times and proceeding as a pro se litigant he can he expected to know that he needed to bring his motion up again to renew his motion before the financial trial it had been denied and denied and so at that point the way i look at it is he just gave up and i don't i don't think that's a reasonable for a pro se litigant and to to have difference between renewing the motion to continue and saying ok that's been denied but was he at any point informed that he was prohibited from getting an attorney not that i'm aware of here is just that counsel stayed in her brief that we're arguing for a more lenient standard i'm not necessarily arguing for a more lenient standard here for him to be held to just that he be afforded the opportunity to  thirty three in the case really really kind of is a good summary of what the child support figures that reviews are the income figures that were used to calculate the child support and i believe the court i the income had been steady or if this three hundred and sixteen thousand dollar income in two thousand and thirteen had not been such an anomaly it may have been proper to go back that far but i believe both the freezing case and the shorter case  argument that the seven years back was not only too remote in time but it was just the three hundred and sixteen thousand was just an anomaly it was an anomalous figure even for this family at this income the reason that was an anomaly number one is there are about thirty thousand of that income was attributed to the specs so mrs geyser made that from her employment with carpet weavers those completely separate in my client's ability to pay the nd part is thirty to thirty five percent in the testimony my client testified and it was not disputed that thirty to thirty five percent his end in two thousand and thirteen was attributable to marriage broke up in twenty four dollars teams you immediately see this drop to one hundred and eighty eight thousand dollars of income that's immediate even the next year so and that's because that thirty to thirty five percent of the income was dried up by not having the patient from the father so that those figures right away i think it was improper to impute that three hundred and sixty thousand not only that but might it be one thing if my client in the next year or a few years later was able to recover that but the evidence shows he was never able to recover that he declared bankruptcy in two thousand and sixteen and so the court is using twenty using numbers from before that that the end the child support is about eight hundred and fifty three dollars a month that's still more then the ability of my client to pay because my client testified that he made about thirty five to fifty two thousand dollars a year depending on bawly him and so that still more that he has the ability to pay now so how did the captives calculate a three you then used that one hundred and eight thousand dollars based on claims calculations in determining that child support would have been about eight hundred dollars fifty three dollars is that right that's correct yes ok is there any dispute that child support based on the one hundred and eight thousand two hundred and eighty dollars would come out to one hundred and fifty three dollars thirty seven cents a month i don't believe so because my client didn't present that trial and that was a number that i came up with with regard to the breach so that wasn't even might have been hard for him to come up with that number since he didn't produce a two thousand and eighteen tax return or a financial aspect i mean here he is complaining about them looking back at prior years in com and he doesn't file a financial affidavit for his present circumstances and he doesn't provide a tax return for two thousand and eighteen which would be a more timely measurement perhaps of his income would also have one supposed to do but look back at how successful he was and apparently the trial court did take into account that he lost his father in law's business but he also the court specifically found that he was trying to hide income and he wasn't being forthright in explaining his financial circumstances now in the face of that finding how could it be error for the trial court to use what is available i guess i would just say this three hundred and sixteen thousand even under plaintiff's numbers was too remote in time and it was it was an anomaly if he had made that and it showed even my peers of the four years if it had showed that he had made that closer in time to the trial then it would have been  it would have been more likely that he could afford that now but going back to this and also imputed income or else also taking into account as part of that three hundred and sixty thousand dollars income from the spouse even you'd have to take that out before you  do the calculation and so i believe taking the three hundred and sixteen thousand the two thousand and thirteen tax return on its face caused a problem there for his ability to pay now and also his testimony to his ability to pay and that's that's the argument for the arrearages that then adding two hundred and fifty dollars on top of that when his testimony and his business managers testimony showed that he was not able to pay and cover that question i'm going to digress a little bit in your reply brief you talked about the somerset property and you seemed to indicate that there was evidence in the record that that was presented was a deed to the property actually i think no i'm sorry it was a settlement statement and the side of the statement was only in my client's name and only there was any testimony that the parties lived there  that it was marital property and that it was held out it was purchased before the properties were married that's my understanding and so it was never shown that the settlement sheets shows that it was purchased before the marriage and my understand you correctly no i'm sorry i don't believe there was any evidence that stated that he had purchased it during the marriage well i'm asking is there evidence that was purchased prior to that we're just what i'm asking you now it the only evidence we the only evidence i saw regarding that was his name was on the settlement statement and there was no evidence that it was marital property but your client did not take the position i don't think your client even addressed the issue or one of the not that was near a miracle is that correct that's correct and that's back to the argument that he wouldn't know to do that to make that classification because it was too complex for him to make that classification would be too complex for him to say hey my wife was employed in two thousand and thirteen or two thousand and fourteen or her income that you made the point that he was in you was misleading to attribute her income to him because that was the figure being used for that year for what the earlier that she earned thirty or thirty five thousand dollars you never mentioned that and yet that's pretty basic well i think if i remember correctly the way that came out of her testimony was the thirty to thirty five thousand and it was also on rebuttal and i might also say you're being asked tough questions and you are responsible for the record and we know that you did not represent your client at trial thank you thank you your honors ma'am please the court and counsel mr geysers counsel has made arguments regarding his dissatisfaction with the trial court's order pertaining to certain issues but what we haven't heard anything about is the standard of review that's a pluggable to these issues appeals as we know are not meant for litigants to simply have for lack of a better term another bite at the apple standards of review are strict and demand at wants to meet a high burden before reviewing court after all we want closure for litigants closure emotionally physically and financially this case commenced in august of two thousand and fifteen now five and a half years later closure remains in the balance this is despite the fact that over the course of these many years both parties have had more than ample time and ability to have their issues resolved within the proper forum the trial court their issues were full and fairly litigated and adjudicated neither party was granted the entirety of their relief sought however neither party can argue that no reasonable person could take the views adopted by the trial or the standard of review before this court today the apple want st argues he should have a chance to revisit certain issues because the trial court denied a motion to continue he filed prior to a hearing which dealt with matters which are not at issue in any way before this court he agreed to have his attorney withdraw prior to the hearing regarding a parenting plan despite the fact this attorney had represented him for the three and a half years leading up to the may th teen trial he signed the acknowledgment consenting to the withdrawal but bailed to appear for the hearing regarding such he was given in excess of the statutory twenty one days to secure new counsel and chose not to do so in till in motion to reconsider was filed the trial that took place in reference to the issues before this court took place one hundred and sixteen there was a relationship with an attorney that spanned several years but most importantly he never filed a motion to continue the aug twenty nine thousand hearing nor did he raise an issue with that within his motion to reconsider so  our position that issue should have been could should be considered waived and never brought before the court's attention certainly the trial court has no duty to represent to mr geyser ongoing obligations to present motions nor is it the trial court obligation to tell him he should or should not hire counsel regarding the child support order and finding the record is more than clear that mr geyser failed to provide any type of evidence regarding his income expenses were child support or calculations excuse me you never provided a proposal to the trial court and yet expects this court to find that the trial judge abused her discretion the record is also clear that mr geyser went to great lengths to conceal cannell flush and otherwise hide income he's had numerous business enterprise it's he's deposited significant funds into the business account since he choses not to use personal bank accounts interestingly eight and this evidence was presented at trial shortly after the business account records were subpoenaed by my client he signed off from ownership of those accounts and alleged his business the same business that was in the same nature as all of his prior businesses was own solely by his twenty one year old and that he was her employee this is even contrary to his website advertising which we presented to the court as evidence for his latest company clean cut painting in handy man where eddie tells prospective clients how darragh and colby proudly grown a company colby even placed a prior business entity that was named after him colby co l l c into his fiance's name during the pendency of the divorce yet continued to advertise himself online as an owner exceeded the small salary he claimed within his latest natural terms all in all the court properly find that he could not be considered credible and that he was trying to hide income in minimize his support obligations on the other side the records clear that mrs guy's your weight went to considerable efforts and cost to acquire and present to the court meaningful and credible evidence regarding income and child's work out relations she filed and had her multiple motions to discovery compliance this was while mr how income could be calculated in miss case and so even if for the sake of argument tissues exhibit thirty three dollars is not considered appropriate because it goes back in time seven years and i would suggest that our case all allows the court discretion and that in fact methodic ays the work went back ten years and was found of acted properly we also presented to the court and counsel petition as exhibit number twenty two because the point was that  seventeen to two thousand and nineteen income was not reliable based upon what mr geyser had put before the court and it's a bit form as justice connect pointed out mr geyser failed to provide any type of two thousand and sixteen or two thousand eight hundred dollars tax returns we on the other hand did a complete forensic analysis up his bank accounts as represented within petitioners exhibit eight and determined that over the course of tw seventeen to two thousand and nineteen his average yearly income was two hundred and sixteen thousand five hundred and sixty one dollars which is higher than when we within petitioners exhibit thirty three dollars as an alternate proposal showed if you accept the lower income that mr geyser suggests is appropriate four hundred and twenty seven thousand through twenty one thousand and average it with the income information we had that was at the commencement of this case and we believe more accurate because mr geyser wasn't not yet minimizing income that number is lower so we think the court was generous to mr geyser when it accepted petitioners exhibit thirty three versus petitioners exhibit twenty two nineteen in that by your own calculations the average salary was one hundred and eight thousand two hundred and eight dollars is that wrong it's partially correct and partially wrong i believe what counsel was referring to hundred and eight thousand two hundred and eighty five either party in this case what we did provide for those years which we thought was a more accurate depiction of mr geysers income is between twenty two because as i know this court has dealt with any evidence or mr guys are suggesting he had expenses we went ahead and tried to take a very conservative approach in his favor to come up with reasonable and credible figures of income and lo and behold when you do that kind of analysis is in your income is right on par with what he was disclosing with tax returns and financial statements previously and i know too we did not even include the two thousand and thirteen income he disclosed within the affidavit we provided to the court signed by him his petition or sport team were at two thousand and fourteen he stated he was earning how the one million dollars in personal income we didn't use that number we could i think the court could have relied upon that because again we believe that the information that he was a deal with the commencement of this action is representative of what he was earning that he took great  efforts and they were obvious efforts so obvious the court made a finding that she didn't believe him to make it out that a man who was claiming innate happen one million dollars he's bank account showed millions of dollars of deposits hundreds of thousands of dollars of personal expenditures who switched l l c names changed l l c names refuses to use a personal account refuses to give us a financial or the f b i but refuses to file certain tax returns we can analyze based upon what  spending habits were for those deposits and spending habits where for those years were missing any other income and it's right on par with the prior income it's lower actually know what he was claiming to a lender so i think the record would be it's fair to say that the trial court's ruling particularly given its very broad discretion to consider incumbent sources of income credibility of incoming calculates child support pre bankruptcy sours your honor i think she didn't make a finding specific to that what i would suggest is that she did average the lower income two thousand and seventeen through and nineteen for three of the years of that petitioners exhibit thirty three calculation i believe she included the prior income because she also believe that mr geysers income wasn't being credibly related by him based upon petitioners twenty two and there was no evidence that the bankruptcy itself had any impact upon his income in fact his bank records and we we provided years of paper records create and post bankruptcy would suggest his deposits were still substantial from these businesses and that his spending was substantial he was living a very luxurious personal and so it's his duty to show your honor this is the problem with my believe he earned income views are the things that have negatively impact that ability my bankruptcy is further impacted that he didn't do any of that he did the opinion that there was a concerted concerted effort on mistake he's clients are to basically once he knew that he was getting divorced to try to suggest to try to demonstrate that you no longer was making the kind of money that he had been making absolutely and she made findings to that effect and this is what's so paramount about the abuse of discretion standard because the one thing we can never have before your honor's is your ability unless we started videotaping trials is your ability to see the tone and tenor here the tone and tenor of the parties and the witnesses testimony to see their facial expressions to watch their demeanors our trial judge had all of those opportunities over the course of several hearings in several years and when you combine that with the evidence that was presented which i would take days for us to go through all of that she didn't believe that she discreetly basically said it was a lie and i do believe she found our evidence to be credible because we were just coming before the court during our hands in the year and saying well we don't know what he earns but we think he earns this and let's use they have a one million dollars he put out his financial statement we spent considerable amounts of time in money put together reasonable theories as to there one do you know what i have your honor i do not know i apologize i don't practice in that area at all but i do know that mr geyser could have objected to his counsel's withdrawal i don't know the truck or denied the motion and said look i don't have the funds right now i've gone through bankruptcy now mind you i cannot remember off the top of my head the bankruptcy timey that that happened well prior to our final hearings in this i think it was into the to find that he qualified for bankruptcy before he only issued an order to clarity he may but i don't know i wasn't a party that are privy those proceedings what mr guys are presented to the bankruptcy court and who was holding him to a measure of credibility i don't know if part questions were asked of a trustee did become a search as we did we weren't part of that process we didn't want to interfere with that process or try to make it difficult but what i do know is he relieved him selfe of all of his debts which makes him more capable of meeting child support obligations and what i do know is the kind of income he was earning and the kind of income he was spending prior to during and after his bankruptcy so if the bankruptcy court weren't made privy to that that's unfortunate tell me let me ask a question i believe  your argument is actually that your forensics examination of his income stream and his outgo the things he was spending money on several years after the bankruptcy were so high or so you made reference to a luxurious lifestyle that the amount of income that could have been attributable to the judge who chose him to do so was such the child support the child support order would have been significantly higher than the amount that she actually ordered yes yes that was the exhibit where there would have been higher gross income and higher child support if the court w really wasn't raised before the trial court but if it is accurate that that property was not marital but the proceeds from the sale of that property also be not marital yes if it weren't commingled into the marital estate and if in fact there is showing that there were non marital real estates that real estate personal sold to acquire that again what we knew and there is no burd mr geyser and there's no burden for us to try and figure out what may or may not be his non marital there's a presumption of marital property it's his burden to overcome we weren't talking about real estate holdings we were talking about sale proceeds pros real estate parcels cash and that cash was incumbent upon mr geyser to trace and show that it should be considered a part of a not marital asset that simply changed in its form and he didn't do that and i know that my client that's why you are going in your brief when you say that you're dealing with cash and it was sold during the marriage that's what you're getting at you're not saying that somehow money from the sale is automatically marital property you're just saying look we didn't know anything he didn't present anything about the original position of the property but we know it was sold during the marriage and we were looking at the cash exactly we didn't have any it exactly and one quick note i know my time was up my client was suggesting that this marital state and had good evidence to support as was worth anywhere between three to three and a half one million dollars before mr geyser started liquidating assets without her permission and ultimately went into bankruptcy now the trial court chose to use a fraction of that about a th of it for division between the parties in this case and the logic was perhaps those other assets had to be surrendered as far the bankruptcy may or may not be accurate not for me to judge also not an abuse of discretion for her either way that's the problem this is again in abuse of discretion standard could no reasonable person adopt her position that look i don't have to characterize the property or provide the evidence to characterize property this is the evidence there is a presumption mr geyser hasn't proven otherwise so i'm going to divide a th of this and really my client receives a th of that through the equalization payment how that can be considered an abuse of discretion or even a manifest weight of the evidence err i do not know  kind of use that in the calculations going on with the brief is because the court relied on that as i believe miss lloyd said that in making her determination for the child support so i really just went from  boil it down i would still say that based on what's on the basis that this exhibit the three hundred and sixteen thousand was too remote in time and it was an anomaly on their tax return and there were other things that went into that for the child  and as far as the somerset property the last thing i'll say about that with that being non marital is if if the property is non marital and those fines were held out  non marital fines then the courts crack that those would be traceable as it would be traceable as a non marital asset there was no evidence presented that that property was or that cash after it was sold during the marriage  there's no dispute it was sold during the marriage because it was sold in two thousand and fifteen but the proceeds from those funds and there is no evidence that it was ever coming and there was no evidence from either party that put forth that it was a marital property