if your honour's this is a situation where we have a fairly straightforward will the roi the first year will have cleared him to us provision regarding how we want to handle three pieces of real estate and that though those pieces of real estate were to be handled differently than the rest of his estate in that they were to go into a trust they were to be that well it sounds as if being noted that property was to be transferred to my client jo fact the matter is she had clear statement of what he wanted to have happen and we can read into that will affect how to sell why she wanted to do it but i don't think it's necessary we understand that he did indeed create this trust no one has challenge necessary to overturn that intent now as you can imagine in this case and you can see from the docket there this provision in the will created problems between the sisters i can't imagine that  problems but the problems ensued and there were various pleadings and things filed and early on in the case in march of two thousand and ten rhonda was at that time represented by a different attorney that different wasn't a situation where there was any think evil there wasn't like she's misspending the money or that you're arguing facts me i'm i'm asking about you know you actually yes correct however what i think is important in that motion that that motion filed in march did not request that the trust be terminated it did not request that a that rhonda be appointed as a trustee all they asked is  and of course trying to change the attorneys and that the matter then doesn't come before the court again for knowing more months the during that period time and it's clear from the record that there were attempts to come up with some solution to the problems in the end there was no solution and the upshot of that is that a proposal was put together by rhonda for good ministration of this and that proposal crucially it goes for pages but again that proposal does not suggest that run the be appointed the trustee it does not suggest that the trust itself now certain restrictions and instructions regarding how the trust to say this to be administered there in addition to what's actually in the trust that is what that is the pleading that's before us is this  summer some theory that one thing that was argued as far as the record reflects whether this proposal by the way worked worse record no matter what there is no there was no transcript there was no bystanders report prepared how can really well and that's a it's an issue that i can't resolve because we were not aware of what was going to transpire at that hearing we did not have a court reporter at that hearing the motion was set for argument regarding the proposal there is no record we have not prepared a bystander report there was no indication that was the question first of all the the we were not aware based upon the the docket itself the court's order and the norse appearing that there would be anything in that hearing which would be you represent the party and all i can tell you is that mr sparrow is is a competent experienced attorney and i don't know what happened at that hearing i do know what was supposed to happen at that hearing and what the court's orders suggest happened at that hearing and what the proposal that was submitted by the parties suggested having that hearing and none of it had anything to do with what this appeal is up by there is until well after the data prepared by standers report has passed and i submit to you there is no evidence before you that anything happened in that hearing which is relevant to this in this case because all it was set was than the hearing on the argument regarding the proposal for the distribution of the assets and we would have no problem with that that's not the issue the issue is the judge went far far afield of what was presented at that hearing what was no get order that says this trust no order exists we're going to do something that leroy mercier never intended in fact we're going to do the exact opposite we're going to give it to run that she gets it straight up and that's wh rule in that or there's no question that the judge has the power he has the discretion to remove her by the standards pretty high there has to be a strong evidence of misconduct strong evidence of what so out that the only people in it and there's nothing in the record that test that says who was there either then run that and we have three or four exhibits i guess that were introduced but i don't believe there are it is my obligation my client's obligation on appeal to dig through the record come up with something that's not even in the record to try to support what the judge did well we're telling you that the only thing that was set that day was there is a proposal regarding the distribution of the assets into the trust in fact rather herself in her proposal recognizes that joey is the trustee there is nothing in the record that indicates you can't assume you can't presume that bacteria has this wonderful nugget of information or evidence there's no indication that it ever exists there is nothing in the  is considered moot he specifically says i'm not ruling on that i'm not listening to that evidence it's moot we're not dealing with so everything that we do have suggests the february had nothing to do with all of the level of evidence that they meet to remove my client as president is actually what we have in this order and on february fourth his is is obviated by the rulings on february would be a huge stretch in reading this order when it says that the petition disqualified is moot mv says it's considered move move this means it's no longer an issue before this court so the next sense when he says  reserve ruling i don't think we can assume he's talking about that issue i think what he's talking about is the actual it ministration these assets how these assets are going to be passed out whether there's going to be deeds but there's go was no argument earnings or no further evidence he decided ok you know what i'm not going to terminate the trust i'm going to only trying to terminate it and then i'm going to appoint the beneficiary of the trust as the we're proposal to distribute assets and next thing you know you terminated the trust we specifically said what were you looking at this is what we've got this handwritten or i don't mean times you have to go back to the judge and say vegetate we don't understand this one at some point in time it became obvious that this was not going to get sort of that and i think we're entitled at some point in time to say i think this judge is not quite getting this we're going to to give us some instruction if we have i think the series of orders that we have in front of the court should be sufficient to to justify what we did which was a motion to walk to explain it great job not don't mean to impugn him i want these orders make your job very difficult make my job very difficult makes this appeal really hard to argue because i don't know what he was thinking you don't know what he file one and i say judge i don't get this and by the way the motions to clarify frighten me because they've been found to not be post trial motions and i don't know exactly what they are but this one made sense motion a player by judge did understand this and instead of getting a nice long order that said well here's what i was thinking this is what my plan was i get a short little order that completely changes what he did the first time that he doesn't explain what he did the first time you so at that point i don't know what else to do i'm done i asked him i've not got an answer there is a certain point when when you don't really want to go back next to him so this is the situation we find ourselves in is an order that is completely different from what anybody thought was going to happen and i says and i submit when i say what i'm i'm including one that rhonda i had begun questioning the executors misconduct going back to the motion to terminate independent ministration the motion to disqualify the trustee once the independent terminate administration was terminated the executor was required to file an accounting and when tory objections were filed very specific objections to the thousands of dollars that had been mis spent on non essential repairs her expanding the limited this was real estate in which run mercer maintained her principal residence for some twenty years she was very interested in making sure that she was going to have a roof over her head and that the will was going to be f non probate not will statement we were in mercer was read as if it were is well and that that non will statement appears in her as an appen her and it specifically was it was entirely contrary to what the will provided this property was intended to benefit  serve instead it prohibits the rental of any of these properties it basically prohibited the property from becoming self sustaining so they are in fact  this distrust could be maintained for a run and she could continue to live in a home the court heard this evidence at the december seventeenth hearing because this because the longer that that the longer the delay the more the executor was using funds of the estate to to maintain the property and arguing that it's going to be insolvent her solution in response to the judge's order that each of us come to him with proposals on how to make this trust self sustaining the response well then you should be saying i apologize i guess that's one of the main problems and you've already noted that is that there is no record here of the proceedings so heard that day opponents burden to show record and to show the error was made that evidence did not exist the fact of the matter is the presumptions are all in favor of the trial or  how would her duck change the person that was mainly interested in this property being sustained and the trust was run to mercer and therefore she was the prime candidate to make sure that the property would remain self supporting and that the  it was specifically the arguments concerning those the trust being terminated were a matter of the arguments that were made even as a motion to clarify it did not come out of the blue that this trust be terminated or or should it be continued with a different trust after hearing judge heard arguments mark and the motion to clarify speaks for itself it is stated that  i think that he yes i think that he will the judge trial court believe that you can do that and then one of the marching orders as we left the hearing was to avoid  was that in order to most closely follow the rumor servers intent was to have the property remain trusters the benefit of the spent through clause there's a benefit of an accounting could be done to the remainder beneficial beneficiaries there are specific guidelines for the trustee to act as opposed to life estate which is just by common law and somewhat don't have that we have no indication in the record that that took place i would point out however that there is actually no argument regarding the second part of the judge's order which suggests that rhonda was the right trustee and i will point out that that point that appointment above any other appointment on the planet would be the most contrary to what the the test and that's what a when you create a trust like this there was no trust created for any of the other kids it was created because obviously the intention of the test data the belief that the test data was that rhonda needed protection from the creditors the south from whatever so it that is the intent of the testator's then putting rhonda in charge of her own assets is exactly what the testator didn't want to have happen and as the court goes on and points on its opinion based upon the presumed to size of this trust under the section of the trust and trustees act run that would then have the power to shut down the trust clearly again i'm trying to divine what judge that was doing but if you motion all of the that's a legal term by the way if you motion all of the orders together you'll see what he says in the end is i'm go that you don't have any record well i guess the point i'm making is i don't get the record for every single hearing i don't get a record on a hearing that's completely unrelated to the issues that are on appeal and it isn't related that hearing was noticed up on the response it was there is nothing in any of the judge's orders which reflects and this is a point this is not in any of the orders when suggests that he's got a line on anything that was said at that hearing if i look at the record there is you say oh we don't need to have a record of that here and we don't need a bystander that seems inconsistent i understand and it's inconsistent because my position is nothing happened at that period why would i get a bite and the reason why friends of your own that's the question is because as pounds attorney notes there are some preserves and a juror kind of to assume that something happened at that hearing that would help them i submit to you that presumption doesn't apply in this case because that hearing wasn't about this issue the hearing wasn't about removing the trustee why does it matter there's no presumption that there was any evidence produced at that hearing when the very wasn't a part of this issue that's the that's why