credibility regarding the witnesses the state proper scattering views to know that only marriage just lucian marriage act creates a presumption that all property acquired during the marriage has marital property this presumption if the spouse claiming the property is not marital can establish by clear and convincing evidence that the property falls within one of the exceptions of the statute in this case history so it's claimed in the trial court found that he did that he had stablished that it fell within one of those exceptions that five is not supported by the evidence and just evidence and this not coincide with the case law on this matter to fall within the exception that the court found mr russo needed to prove by clear and convincing evidence not only first from the shareholder interest in this and that in the corporation which purchased before the marriage took place and that was not marital what is question is whether or not boehner says that step two step from that interest were not marital in nature as they were as whether or not they were not attributable to list personal efforts let's say there were no there was no case one and this is a case this is the first time this is ever come up so a doctor works for or is part of a radiology group in addition to his income from that that we denote as just income i mean salary he gets bonuses he says the bonuses are non marital because they just sort of flow to him we're not in thinking about it or doing anything right what they house is happening in terms of income it's generated by the work of he and his colleagues he is colleagues didn't do what they were supposed to do there wouldn't be any bonuses to distribute i guess that makes sense it does and i and i agree with your other and particularly for you think that's what the law to be but it's not i think that i think the law is that if you could demonstrate that it was not attributable to his personal efforts at the example as you stated if you could demonstrate that he was able to receive these posts whether or not he worked there if he was able to maintain the shareholders interests whether or not he worked there and whistles aren't the facts in this case these are the facts and he's a working radiologist for well then how can you prove by clear and convincing evidence that he we don't know what the facts were we don't know if he was able to demonstrate that he would be entitled the bonuses even if he didn't work there i think that is the the significant point here is that he put he didn't provide enough evidence showing whether or not what one titled into these bonuses and they put the only evidence that has anything to do with this entitle me to these bonuses i feel is in the employment agreement that states the corporation i do the kind of compensation section states corporation shall advance money to to the employees deem it salary  bonuses but they're only entitled to that money if they meet the requirements of working there if he could of course sampling the same margin case that the trial court if i did he could have presented evidence from somebody from the corporation saying that these bonuses had nothing to do with his employment then that be a different situation but we don't have that here in the requirements of the statute case law are but he proved by clear convincing evidence that they're not attributable to his personal efforts we don't have that you're that whole basis of evidence is this point in the record the only mention of these bonuses is in stating that he received the bonus because he was a shill that satisfies the first prong of the test but it doesn't have anything to do with the second t bed that situation is similar to what the second district found in great marriages schmidt that in that case the spouse plainly not marital property testified and presented evidence that the purchase of property was made with attributable to his personal efforts seem so reasonable why did a good job will not grasp i think it was i think it was the lack of any specific case really  point i think judge job well felt that because it was passive in nature it wasn't directly related to it was in the performance bonus it was a bonus that was given to all shareholders based on the  and different profit sharing that's why isn't it basically profit sharing among the shareholders i think it is but the employment agreement seems to imply that it's proper sharing but you're only entitle to this prop sharing if you meet these requirements but there's no evidence on the record to explain in years the doctor just that i've just russo simply said i need these bonuses because it might shareholder interest and that's it he didn't say think he's bonuses because of anything i think that the fact that there just isn't sufficient evidence and he didn't meet the standard of clear and convincing evidence and the case law states that any dispute or  are there in the record and because the evidence isn't there the trial court didn't have sufficient basis to make this ruling the reason the dispute between maryland on marital property had to come down on the side of the presumption and that it w and under the terms of the compensation of every doctor that is there a they receive different types of employment that they receive different types of compensation one is a basic point the basement point they have to perform what they call the bar the minimum number of hours of units is what they characterize it and if they perform then they don't owe the company back money or an advancement towards their base then the second thing which is what i think is a little bit different just connected you are talking about is they have performance related additions to base so if i am  that performs so many units above base bar for body i receive quarterly payments of unit pay which is directly related to performance so if if just turn doesn't perform well i just disconnect then in fact there's differences in the unit pace from zero to whatever it's done and dr who so clearly went through all the different types of bonuses not bonuses  one of fifteen or one of thirty two so some of his work must generate profit and then part of that and most he would say we've got thirty shareholders or fifteen shareholders maybe one fifteen is is exactly the same as and i'm sure all positions so that term bonus that you choose as a blanket compensation statement in there applies to both non shareholder positions and then you would receive equally whatever your bill in a share is it it doesn't it isn't tied to whether i work more than you did as a shareholder or whether i produced more than you did a bonus pool runs uniformly across the board for all feral years so it's not you cannot say that there's a compensation due to his direct efforts he doesn't earn enough and so there is no he only receives a through stock ownership and because of that then the court because it is traced to stock ownership i'm making this i'm not i'm deeming this to be a non marital because i believe that testimony is such that the majority of that money if not all that money comes from not his personal life but from his ownership in the personal efforts of all the physicians of practicing the court also did an adjustment if you look at the court's decision the poor made an adjustment of seventy three thousand dollars of took his number of shareholders and divide the money that he received by one fifteenth or one i think time is one thing i mean she already received more than that if you were to throw that back into the m state so what i think the court is or recognize that this was there the earnings that came off of ownership versus earnings from this first one and it's it's always a company and had stock ownership and it came out just the spoke you could say profit sharing for the year but they've made the determination and they split it out on  he has to say whether or not he would you know get the mine if he worked there in warfare that type of thing i don't mean in a professional business  contracts and i think the stock purchase agreement says is that if you were being associated with the company you have to sell back stock so i mean that's that's i guess  think in all of these corporations a judge makes a determination based upon his balancing of his determination as to with this many positions basically that are cheryl position sharing not only there any profit in the company but the profit generated from employee physicians it is not directly attributable to this first off and that's a judgment and the only evidence means that what you're saying is if this is not associated with what i do for a living it's not associated with what i feel the first is associated with what i own that isn't as just quickly i think the proper standard review is to know we don't challenge we don't say any of the facts are disputed we're saying these are the facts that were presented in evidence and this is that this is the test one of they were presented we're not saying that he presented false testimony or as testimony was incorrect we're just saying that the evidence wasn't sufficient is what argument is on an appeal it's sad chosing any of the evidence in the trial courts of the proper sandor view is to know there's not any prior to signing the stock purchase agreement so this was a new employment agreement he was entering into at the time he became a full shareholder i don't know why he would cite the exact same document again if it changed if it's the same one that he used as a non shareholder the fact is none of this information was ever presented to the trial court the trial court didn't have the luxury of being having the situation explained to him the only use of the word bonus in any of the testimony has to do with the bonuses he received it's a shareholder interest the employment agreement states even though the corporation shall be advancing sums of money if the dr and characterizing the same a salary or poultices i think given the language in the contract and given the testimony at trial you have to assume the bows that they're talking about the employment agreement are the bonuses mr russo was talking about in his testimony and the one agreement states that to be entitled to those bonuses he has to meet the minimum requirements set up i'd order directors the minimum required wins are more than merely being a shareholder it's predicated i discontinued employment and this continued personal efforts associated with the corporation there is no evidence saying that that his continued person left efforts had nothing to do with his entitle me to these bones is the fact that there is no such evidence i don't think the trial court could find that he had established by clear and convincing evidence to overcome the presumption that the properties marital property given that situation given that this was was insufficient i think this court has not has no option but to reverse the trial court's decision saying that it state that had nothing to do with my personal life or who simply based on fact because that's pretty much what he said no no it isn't he never stated that what did he say he stated that he receives bonuses because he's a shareholder and bonus even if i don't earn any unit i think if you were to meet the minimum requirements of the bar made the barrios look at the public probably get the bonus or whatever other requirements criteria the board of directors sets out to be entitled to the bonuses he didn't explain that he just simply said there's a bar a minimum hours that he's required to work but he doesn't say whether or not there's any other requirements that are necessary there was no evidence presented from from the corporation it's simply the doctor's testimony that i did this because i'm a shareholder yep that's the first part of the test was it's probably not a barrel property but the second part of the test is that it's also not attributable to his personal efforts it's based on his continued employment and his personal efforts i think it's fair the property