from employment and terry at the time parties were divorced was forty six years of age so we could reasonably assume that if you work for a reasonable period of time terminated employment or retired most of you and he would retire at age sixty fi you for a variety of reasons chose to terminate employment to retire at age fifty nine which triggered the current proceeding which started originally with him fine of the petition to modify back in august of two thousand and nine  we filed a response on behalf of suit against proceeding we did some written discovery hung out in december his attorney at that time filed a motion for voluntary dismissal based on the fact that he was going to retire for another twelve months five months later however mr both his current attorney mr and its filed a current proceeding a sixteen page up pleading petitioning for terminate review and terminations two months later an additional sixteen page  initiated also some discovery and the subsequent pleadings were filed with the court significant discovery was taken in this case which went on for a period of time leading up to the final hearing on this matter which was in september of two thousand and left september of last year in that hearing on september second of two thousand and eleven the following evidence was presented now i should mention that because the original judgment of dissolution had provided that this would be rehabilitated maintenance review of all ontarians retirement the bird proof of course and that proceeding would have normally rested upon a eat since the rules of maintenance are such that if its permanent name is the person who's making the payments has the responsibility for showing that i do want to emphasize that i think one of the key points in this proceeding is that the parties have agreed that the maintenance would not even be reviewable for the period of time from age forty six until terry retired normally aged sixty five which would have been a nineteen year period juries retiring six years earlier he triggered that review process sooner he did a couple of other things he potentially shortened the obligation of parties that originally contemplated and he reduced the amount of pension benefit which  allowed to receive under a quadro that was part of the horse trade reduced by about forty percent she would have had almost three hundred dollars a month in pension benefits and it was not down to one hundred eighty dollars now the court may wonder why was the maintenance provided for such an extended period of the the nervous system the respiratory system and the cardiac system or doctor the time of the hearing dr charles bronson has testified that there are a number of side effects of this miocene your grandma's house on occasion and is having on sue at the present time he said that in the last ten years she's had fifty hospitalizations he indicated that she requires at least monthly plasmapheresis treatments which are expensive procedures not unlike kidney dialysis he testified that  she has required and will be likely to require additional hospitalizations and he testified perhaps most critically to this proceeding that she is on employable soon at a truck in town to follow  judgment of dissolution on multiple occasions to try to resume work on four different occasions she sought to obtain employment each of those occasions she was rewarded for her efforts of being hospitalized and the ironic thing about that is that as a result returning to work she wound up depleting what limited after she come out of the marriage with so she was basically left happened at the time of the hearing in september with two assets house worth about a hundred thousand dollars in mortgage to almost that same amount and a car with ninety nine thousand miles on it and the prognosis for the future is not good the judge at the trial court level judge conway concluded that the testimony from dr russians had shown that sue was to a reasonable degree of medical certainty  and totally disabled from employment suggesting that any future employment pursue is virtually out of the question unless a miracle cure of course is found or minus the great terry on the other hand is in pretty good shape and one of the reasons the court probably provided for the review i wasn't involved in time the original judgment of dissolution was granted nor was mr indigent but one of the reasons in all likelihood was because circumstances can change when a person retires oftentimes with a person's income going down in this case it's quite the reverse there isn't come now it's thirty four percent higher than it was when the parties were divorced at the time parties were divorced his income was about fifty eight hundred dollars a month now it's over seventy eight hundred dollars and in addition kerry has about a two hundred seventy eight thousand dollars for a one k but according to exhibits if we reduce the retained in discovery and we submit it in the record that before a one k is generating interest in nine and a half percent which would be dreadfully an additional twenty seven thousand dollars in annual income you have coming in he and his wife the woman he married shortly after he divorced to live in a house in southeastern michigan on twenty eight acres of land twenty four of which is tillable and his leased to farmers in the area and the only eighty eight acres of recreational land in the michigan upper peninsula about fifteen miles from lake michigan in addition r v added according to records that were obtained and introduced in evidence at least twenty five thousand dollars in a credit union account quite a collection of motor vehicles including an s u v a pickup truck to harley davidsons which he estimated at a value of forty nine thousand dollars total value of his estate excluding his income comes to almost three quarters of a million dollars by his estimation not by us and of course we didn't have the opportunity to do independent appraisals of his property but just using his values we come up with three quarters of a million dollars in addition is current wife ingenues to work  fourteen thousand dollars a month between the two of them as compared to sue who now has twelve thousand dollars a month after all this evidence was produced at trial judge calmly took the matter under advisement and in early october handed down a decision which it requires certain things be considered on review here and he'd rather likely glossed over the provision of the parties judgment of dissolution of marriage settlement agreement to call for a review on kerry's termination and simply said if this was the court indicated her total expenses each month much of which of course from the medical thirty four hundred dollars the amount that was that she now has an income as well hundred dollars so she's about twenty two hundred dollars a month shor in terms of her income vs expenses while her husband ex husband i should say has managed to accumulate a substantial estate we talked about while paying her maintenance and now has a higher income by thirty four percent higher than  what was being earned at the time that the parties were divorced given the circumstances as i say the judge essentially chose to disregard section five and a dash five and rule that because she had received maintenance for a period of twelve happy thirteen years it wasn't possible it wasn't possible that it could extend beyond even though the parties had agreed to review because to do anything more than that would be to grant permanent maintenance and the parties the way firman now the judge's decision i think overlooks several key principles two in particular one are rules of contract law obviously one of the plain basic rules of contract law i think we all learned our first year in law school is if you give the plain meaning to the terms of the parties in this case the parties clearly agreed that review ability would be provided for their maintenance when terry retired now the fact that terry retired six years early could be treated as a measure of bad faith on his part in order to accelerate the review but let's put that find even a reference to the statute much less any of the requirements or conditions under that or second rule of contract law if you want interpret a contract so as to render a terminology well the judge clearly did just that by ignoring the term reviewable and superimposing a different term and the third rule of contract law that if you can order in and handing this decision down is that a specific provision of a contract shall control in general provision the judge's reliance and his decision weighed heavily on the fact that in the boilerplate at the end hasn't continued disability and after twenty seven year marriage that should be enough to warrant an extension this fourth in the case again raced down back in the early ninety's took a situation rehabilitated maintenance where it was extended for a period as well as the circumstances of the parties financially all of these factors need to be considered the trial court of this case ignore all of them didn't even mention it instead jump to the conclusion that this was after the permit made the big difference between rehabilitative and permanent maintenance if you review most of the authorities are that rehabilitative maintenance means the burden of proof is on the ag to demonstrate that there is a need for him to need names she bore liquor and that's where a lot of the attorney's fees in her face the other factors that need to be considered in considering rehabilitated maidens are the factors that i've referred to before and this court and in prior decisions has actually extended the period of rehabilitative maintenance longer than the marriage subject to further review because circumstances could change which is what we asked for in this case we asked for this to be extended for an additional four year period subject to review of that point because they'd both be getting close to an age where they she would be  social security benefits if characteristically held at the period of the rehabilitative manes considers these various factors and a critical part of that is the length of the marriage and the viability of a person going back to the workplace she tried four different times each time she wound up in the hospital was really viability like the basis of her own and the like of marriage to just try to put some meaning to rehabilitation and to not convert that language into permanent correct rehabilitated maintenance cases is rehabilitated is there is a genre of maintenance in much the same way as permanent means is that those are the two terms that are frequently used in these cases the first time periodic meetings which is more like a property settlement of war and that doesn't concern us here this and i want the guinness presentation by emphasizing something that mr weaver didn't mention the law and that is the burden of proof in this court mr schriever it was very correct in saying the burden there it again it's her burden as the op of apple long before this court and this court well knows the abuse of discretion standard is the one that this court is directed to apply to judge conway's decision to see if he agree with the judge's decision only under that circumstance can it be reversible it is a large burden of proof before this court that's just initial point i want to make with respect to argue th case we see it as a relic relatively straightforward case of contract interpretation fundamentally and there are three sections of the marriage and dissolution act that a plot five five  two five five zero four and five tac and the reason i want to start with five five zero two besides the fact that it's the first number final numerically is because it is a provision that merrill settlement agreements are favored by the courts but they incurred the judges incurred from public policy of the state of illinois if you try to get parties to agree between themselves why did they do that why is that a public policy because the parties know better than the lawyers and probably know better than the judges with all due respect to you what will work for that and that's why they do a nervous element agreement and that's what the parties did  certainly knowledge that conceptually it's rehabilitative maintenance provision that has some aspects of it's going to go on for a considerable period of time i would say then you know it not really a part of this issue but it's a part of your question i think a lot there would be a debate between the four forms for two of us with respect to whether this was reviewable under the current state of maine an he's sitting there i mean it is easy for a one side or the other sitting up here it's a great courtroom and it's a great place to say that the judge in the trial court didn't do his job if you're in the out want but i think what this court has to do and farm i hope before you rule and i know it's in small print as fairly regret that i hope the three will look at pages twenty four and twenty five nine three i think it's put no sex and so on there goes on for two pages what is included there just as smith is all the property that was a warning to sue ellen boldly in the original divorce decree she got an enormously disproportionate share of the property in the merrills element agreement i have the whole let to being reviewed that's what they decided to do they certainly didn't decide to award permanent maidens or they would do use the word permanent i mean it was well established as a form of maintenance tonight ninety eight no they said it's five five can't it says that the part they did that and the case law the concept of rehabilitative maintenance requires the person who is receiving me to go out and try and do something to help liberate themselves and be calm independently self sufficient so again as mr as mr slipper's criticizing j let's look at what the facts if he hadn't found besides the fact that he had already paid three hundred thousand that's one of the factors also under five ten how much maintenance this bracelet can pay he also looks at this track record us at the time you have to the time the divorce ends are a lot of time it's being reviewed when the judge has to say this is going to continue this is not going to continue well that is she's receiving social security disability her own vocation she did try to do anything else she did tried to work part time doing something at a computer she didn't try to set up a home office for one or there's none of that ever to evidence that she tried doing it and what does she say on the witness stand about that she says very candidly i felt better not working that's as close to all of her testimony as i can get that doesn't square with rehabilitative meetings and continuing rehabilitative maidens i would suggest probably everybody in this room would come up there and sign a document that says i feel bad when i get a day off and i don't go to work to do what everybody feels that way but that just responding to a rather curious argument if my opponent is just advanced and that is that suit was not really disabled and didn't exercise diligence i'd like to quote a couple of things that mr and it's put in the record in the court can find is that record page seven  eight and fifteen and which he stated quote we have acknowledged and admitted in every way we can judge that mr ms bolding is disabled or they're on she has had a medical condition she is disabled and unable to work for the ron under oath so  your honor yes because there is the possibility and in your own response to your question she was actually determined on the request for mr bolton sent to social security which is one of the documents that she got disability before the parties were divorced so he was well aware of the significance of  if we read in everything in the rehabilitative in other words if you're still working toward right now being self sufficient if the person is totally disabled no longer working for you know  that is are we still talking about rehabilitating well the rehabilitation could occur in a variety of different ways a cure may be found for the onus in fact that was probably one of the reasons they put that reviewable clause in there there may be a cure that's found it's possible that there could be a change in his circumstances or her other circumstances or there may be some other source of of of income certainly not public a system right now that might help her out so she no longer needed the support from mr povey but none of those things exist at this point in time and as a result in keeping with the courts have held before you determine the rehabilitative name is based on the ability of the person to resume work here she clearly couldn't and the judge understood that the judge said he believed a reasonable degree of medical certainty the doctor to testify she was disabled so it wasn't her lack of looking for work as mr and suggested he just didn't like the idea of maintenance being reviewed and continued and i agree with mr and it's true that the standard in this case is a question of that did the judge rule against the manifest weight of the evidence with due respect your honour's this judge ignore the evidence he ignored everyone the requirements of the courts the post look at under section five ten a dash five what efforts have been made to find employment what are the resources of the parties how is their income change history and it's made much the person with the property she was awarded in the judgment i explained in my opening vet that's gone because of her medical expenses because she tried going back to work and was hospitalized and wound up spending her medical this is a terrible terrible conundrum for sue both she doesn't want to be dependent on her ex husband but her illness contract during the marriage which both of the parties knew about when this agreement was entered provided for that judge i think you were right on the money when you said before him what factors favor the judge's ruling not in this case i'm turning speech just very briefly on that the judge's denial of half of our attorney's fees was based on the fact that he felt that evidence regarding m repeated pleadings over a period of two years i could continue motions you can examine and see how it might be those pleadings where they were more legal briefs than pleadings in many instances and those all need to be responded to the trial court didn't find mr boney had the those attorneys fees be awarded both for the trial at the full level submitted to the court and undisputed as having been incurred and or this appeal we would further ask that when the court that if the court either reverse the trial court and reinstate the amount of  maintenance of a two thousand dollars level retroactive to october twenty eighth or more appropriately because of the deficit in her income versus expenses that it be increased modestly to twenty two hundred dollars mr and if she suggested in his closing argument before the