court counsel good afternoon there is only one issue that has been brought before you in this case today and that is whether or not trial court to use discretion when it ordered ms or its to pay for former spouse maintenance for a period of ten years or until such time she chose to retire which ever occurred first by way of your brief background at the time of trial both parties were relatively young ages fifty one and fifty two respectively livingston was a retired police officer having retired just the year prior at the age of fifty on the other hand miss or its intended to work as a special education teacher and did not have any plans to retire for a period of anywhere from ten to fifteen more years yet it is also clear that neither party gave up career or educational opportunities training opportunities or made any other sacrifices to the other party's career or training or education nor did either party make any sacrifices to their employability and ability for an income due to devoting time to domestic duties now the trial court originally ordered that the parties divide their respective pension accounts mr huntington police pension and ms  after hearing ms court's his motion to reconsider and recognizing that had made some errors the trial court adjusted that amount to seventy five percent of misfortunes ms court says portion of the police pension again to be paid in the form of maintenance now the determining maintenance namely the disparity between the parties earning after a time trial there is not a single other factor listed within the court's findings which the trial court only gave after the motion to reconsider was heard in order to p the only factor that could possibly point toward an appropriate maintenance of work would be disparity of parties earnings and i would suggest that the wealth of case law that comes out of this district alone in addition to the remainder of the state on this issue here is not a single published opinion which would indicate that bad factor alone supports the maintenance of work those cases are very thoroughly discussed actually usually and often point to a number of factors under fire before although not none of them need to be given equal weight for more or less weight than the other there is always more than one factor in support of a maintenance and that's the guidance that we have worked with within our district and within the state and i would suggest in this case the trial court could not make findings that would support a mate and so were other than the disparity in the end when you share that with this district and the state's obvious mandate for party c keep it maintenance and receiving maintenance to rehabilitate themselves and become self sufficient if possible from their former spouse that further supports are you meant that this was an abuse of discretion because the record is also very clear that what mr luddington did not do with any meaningful intent is to try to avoid the necessity of his former spouse having to support him we know that he was employed for a period of time after retiring at the age of fifty four and ammunition shop he worked there on i'm assuming some type of you see the legal work contingency but commission basis where he thought they were only giving thirty percent of the fair market value to the owner of the gun and he didn't think that was fair he admitted on the record there was no other reason for his departure nor did he believe the gun shop was committing any illegal acts and i would suggest that that dilemma whether it was a moral one for him or not certainly didn't justify his giving up five to six hundred dollars in gross income per week during the pendency of a separation and divorce from his spouse might want to keep that job while you're looking for the next one perhaps and it certainly doesn't support his unwillingness which i believe it's clearly unwillingness to seek other employment questions i was not trial counsel your honor my partner was but the record would indicate he was questioned about what he did and i believe it was actually his own counsel that did most of the query on that and all that was told was on line applications were made there is no written document verifying that that even occurred that he applied towards posting and did not receive an offer so those of us from mill you're with me to normal in the surrounding area know there are a wealth of opportunities to at lease request an appointment we have to major universities to community colleges to large hospitals we have after me we have country companies we have grown mark and have a craft of smaller and middle sized businesses to whom a potential employee can seek employment none of that happened in this case it was twenty years of milk officer with the normal blues yes you're on he did and again the testimony that he was my argument today is that when the parties and their marriages and their partnerships perhaps what we would like to do and her to do and have the luxury to do is a partnership is not always appropriate once that partnership bent so what mr livingston is expecting his wife to do is at the same age to continue to work until the age of sixty three sixty five or more more and more normal retirement age and support him yes so he can pursue his endeavors which he reasonable or feasible and this court placed no ethicists on his duty to rehabilitate himself but it's notable that the trial court did specifically find that he was capable of employment and he could have made other efforts at finding which was literally days before trial that neither party in this case thought of him as a potential maintenance candidate and it was a last minute let's see what can stick to the wall if we  we second guess a skirmish that's a great question and that's why we're here today we cannot grow up when we don't understand why any reasonable trier of fact would find that a man of that age an employment history that capability of work and their refusal to rehabilitate himself would have been granted any type of maintenance and the real difficulty in this case is well i think what happened is the trial court's concern that  we share one of the most well one of the two of the most valuable aspects of this marriage these people did not live a luxurious lifestyle they had a house some vehicles some investments their major assets are the t r s and the police p job which i absolutely believe the arguments would be the same particularly when in my practice area mate it's comes up quite frequently in front of the trial or women traditionally are requesting name ends and are queried at length that trial about their attempts to rehabilitate themselves will become more self supporting and when you compare that with the illinois walk that says that is jury duty even as a permanent maintenance recipient absolutely i think the burden would be the same the problem here is that we have someone capable of supporting himself in whole or in part separate from his ex partner who is having to continue to go to work every day and yet subsidize his retirement lifestyle and the dilemma she's in moving forward is how do we make this stop unless i continue to share most of my portion of this very valuable asset over the course of ten to fifteen years which if we do simple math and we don't take into consideration the annual increases in that she would receive if she received half of the merrill portion roughly two thousand dollars per month if she forgoes that for ten to fifteen years we're looking at one hundred twenty to two hundred  thousand in the last investment time value well she's not able to use or invest per se she either has to continue to allow that to happen or alternatively quit her job stream of income and then to go to the trial court did not put much emphasis on that and that is what is very disconcerting about the ruling after making specific findings if you look in the order those are in the order that he is capable employment but it's hard to know how much he could earn because he's not working at slough the fact and so now ms ports issue to file a petition to modify if mr luddington doesn't follow through with the mandate of becoming rehabilitated and if she does that how does she overcome the burden of showing a substantial change in circumstance if i'm not doing something now and i continue in that you could be not doing it was not doing unless i guess i mean so that's the dilemma from poor maintenance pay or is it the modify ability language  i recognize under the hucker decision that that part said you're in a bit but your refusal or your unwillingness to rehabilitate yourself may be a basis for modification it doesn't say it shall be and so those are two really tough choices for a person who is in the same physical condition the same working condition the same age as her spouse her spouse did not give up anything by virtue of this marriage or for making duties or for career education say of not maintaining employment at his age for a long period of time and so when you look at also the record where you where i go i circled back to i don't think mr luddington initially believed he was an appropriate name and candidate anyway by virtue of the pleadings themselves in the last minute request if you look at the record i note that mr luddington never presented evidence that his inability to meet his needs if he pursued and obtain employment there was no evidence of that  if i had employment i still couldn't survive no evidence he had no evidence presented to the court that he'd made good efforts to secure employment and that was his first not miss ports is no evidence of the length of time necessary to  employment devoid of his future earning capacity never talked about that the standard of living during the marriage never talked about that or you can infer from the record you can see what they had in assets was not a high high standard of living it was but there was no evidence on that and there was no evidence as to the tax consequences of the proposal and so i thought i believe it was say what do we have to lose let's throw this thing at the wall see if it'll stick in the trial court let this request stick and that was an abuse of the traffic lights discretion and that's why we're asking your honorable justices to consider overturning that decision every manning this back the t david agrees completely maintenance recipients are obligated to seek financial independence the testimony at trial was that you have made some job search efforts that you understood that if he was awarded maintenance that he would be obligated to better himself financially which would mean seeking employment the testimony was never in the inferences were never that david intended to live a life of ease tending to his pool while his wife continued to divorce process was his retirement income that it would be appropriate if he were to keep that he would waive any interest he might have in his wife's retirement income and that we could sever all financial ties between the parties in that fashion  go their separate ways his testimony was he would have won any of income if he had the full benefit of his retirement when it became clear that we were not going to be able to resolve the matter in that fashion  from david spears perspective this became a maintenance case and council like to some extent is correct that the decision to pursue maintenance was not something that was in the forefront of every minds from the everybody's mind from the get go it was he would have an obligation according to the case law so maybe i'm not being clear tell me again why for a year your client has a bit employed he says he's testimony once he's not been able to find work why is that the least believable and how in the world of the trial judge by well the trial judge had the ability to hear the testimony of both of the parties to weigh their credibility to assess their credibility  fight in some the testimony was that he had made some efforts and maybe the question is did he make sufficient efforts and i think that's where we get into the case i got twenty retired honorably cop get life reasons i mentioned earlier why should we buy the idea that he's just not a slacker well there was no evidence that was presented at trial that would support the position that he was a slacker and has he will remember boyo doing anything including the job he has to go to show before to be looking for a job how does that work well respectfully i believe that the case law addresses the recipient's obligation to make significant efforts to look for full time employment and to better themselves financially and to make themselves find ways there is efficient use the recipient now has not received a penny in maintenance well hey that's the order of his being a bill that's the order that's being and all i can say your honor is i don't believe it that's supported by the case and if i could direct address that in more detail counsel in support of her argument cites to eleven different cases which she  erts support the view that he has a duty prior to the award of maintenance six of those cases cart court write downs of hooker lambden martin and peterson all address issues where there was a modification of maintenance that was sought a terminations of maintenance sought or an extension of maintenance that was sought the other five cases mcneely there the wife made no efforts to seek employment prior to an contemplated a review upon a change in circumstances i would think from a pleading point of view that that would be a change in circumstances that would certainly justify the filing of a deed whether that would be sufficient for the trial court to make a modification would be for the second the effect of three is present and future earning capacity of each party that can be considered by the court that is not a mandate to have made so many of hurts or this is in regards to factor five which is the time necessary to enable the party seeking maintenance to acquire appropriate education training and employment and whether that party is able to support him or herself through appropriate  employment courts in the time necessary to enable the party seeking maintenance to acquire appropriate education training and employment and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child which isn't the issue here  the respondent is apparently able to support himself on his current pension income meaning if he has his full pension income his testimony was he'd be homeless if you only had half of it and is able to secure further employment though it's not clear what employment would be available to replace whatever portion of respondents pension income is allocated if any to the petitioner in the property distribution nor is it clear what further education or training would be necessary for the respond to secure of where appropriate employment what do you  i don't know what all of us number three the president earning capacity of the court did the courts that went in in its order on the motion to reconsider the court went to great length to address all  considerations in fact four pages of the order or pages of a seven page order addressed just that as to the third factor the court said the president future earning capacity of each party the petitioner has an established an enduring capacity as a teacher the respondents earning capacity is first indicated by his pension by virtue and i think that's the court address that by virtue of the fact that it was earned by  recipients found has a good faith obligation to become self sufficient while using the maintenance award to help during the transition period cited to in remarriage of sizeable which holds one objective of the act is to encourage a formerly dependent spouse to become financially independent in the future if possible second district and remarriage of auckland or folds in a marriage dissolution proceeding where the statute authorizes an award of maintenance under just more equitable terms which are section does this all that is required to sustain the trial as we've noted in our brief and in her initial petition leads for such other and further relief as the court deems equitable and just an award of maintenance has been up well we're just that leading was was made that's in the form of matter again for district days the wife who is seeking maintenance  not specifically ask for maintenance in her position but she did leave the general act with all other and just really and this is a situation where we're maintenance is clearly an effort of will consideration the trial made given that we're dividing up pensions which are typically the assets of the estate but since david is retired that asset is also its sole source of in the rough and the court felt and david agrees clearly that there needed to be some equitable consideration there in some offset given that half of his livelihood was going to be going to and since it was an asset in addition and we further believe that the court properly considered all of the relevant statutory factors as i've noted the court went to great length the majority of its order is detailing the addressing of those that use or those requirements and w believe that an award of minutes is merely a mathematical equation of some sort did a majority of factors weigh in favor of maintenance or did enough of the factors weigh in favor of maintenance there's no such requirement in the statute there's no such requirement in the case law the statute itself the language from the statute authorizes the court to make awards in amounts and for periods of time as the court deems just just an app with a ball are synonymous as i said this is to the case and made a ruling that was just based on the facts of this case there was only one factor that was blind it was only one factor that was applied i don't agree with that analysis i think if you read the court's ruling more than one factor favored the award of maintenance perhaps not a majority of the factors but waited are looked at as a whole the court found that maintenance was appropriate the court found the balance to be reasonable as i've discussed without some form of me at least while david states full time employment he's going to be having to live on one half of his pension and if that's the money wise he cannot do that you cannot sustain anything even remotely resembling the lifestyle that the parties had on only half of his maintenance when while married he had full benefit of his maintenance and his wife's in world and household and argues that she was improperly inappropriate leave the ny the time value of her share of david's pension in her grief she cites no authority to support that position the one case that she does cite and remarriage of manker has nothing to do with the facts of this case in manker the trial court reserve ruling on the distribution of a pension until the parties were tired that's not what happened her argument understandably is specious she's for presenting things to this court in a light that only shines upon her when you look at the totality though as the trial court must it's got to do what is right of the circumstances what is right for both of these parties we believe the trial court did just that and made a just and up with the ruling it's now up to this panel to determine whether it did so within its discretion and that is the standard of review was there an abuse of discretion would no reasonable person not use three justices but would no reasonable person make the same ruling that judge reiner made in this case all right mr miller your time is up through his testimony was january or february of two thousand and twelve so roughly four months the divorce was filed in two thousand and thirteen and the trial took place i believe in june or july of two thousand and fourteen so we're actually talking about years of not seeking and pursuing employability but for the attempts that we've discussed earlier and i would respectfully disagree very much with counsel's argument that that duty only is trigger upon the divorce itself in a receipt of maintenance if that were the case a trial court would have the impossible endeavor of considering factors three and four of the section five or four factors if we're absence of any evidence as to what attempts are being made to try to become partially or wholly supporting how is a court ever to make findings on and that's what kweisi in the face in this case is that there was no evidence presented by mr  motion to reconsider realized findings were appropriate but the findings themselves in reviewing the actors don't outweigh two factors that support the award and i haven't heard from counsel nor can i find at my own accord confusing initially he made a maintenance require in addition to wanting all of his pension and having half of ms works is to wrestle forty because that was his first proposal tendered a file that was also the first time argued would be unethical to pull as well because then she is denied for years and years of this sizable asset that happens to be in pay status by virtue of the type of pension it is because she's elected to stay working and of course we didn't have these pensions valued which isn't unusual in these cases and so how would the trial court have known and accepted that argument without the respondent bringing to the court that evidence if i keep mine and you keep yours what will we ultimately receive in the end the present value of those benefits i would also point out that the duty to rehabilitate must start being considered during the proceedings themselves otherwise the court would never be able to make a determination as to rehabilitative versus indefinite maintenance and this case was not awarded as a rehabilitative maintenance award that might have been more palatable but it is an indefinite award contrary to what counsel states because in ten years and would be sixty three which is a more normal retirement age or she has to she can't get out from under the operation till she actually retires so that is an investment that's a word it doesn't put any burden on david to do things and then have us come back and say ok you've had three years since you retired almost four to do something with yourself to make money but we're going to give you a year or two more to review that didn't even briefly just like to point out a couple of th