therefore the decided the property on broadway was worth approximately six hundred twenty five thousand dollars duane and back across one entered into agreements where he would pay dr crossland that amount short shortly thereafter of my client there after he got financing through first federal when he went to get the financing he did not put down the down payments instead he used the property itself but that the facility restaurant sits on life insurance policy with the bank as the beneficiary therefore no marital property was used during the financing of that private property with regard to the stock and to wayne and back across one entered into an agreement where the stuff was worth attractively his share was worth presley two hundred fifty thousand dollars and the corporation has been paying that back whereas at the time of trial there is about one hundred sixty thousand dollars left of that of that money that it was not real property like i said only reversed because snit but i'm not so sure that's the case because i thought maybe that trial judge looked at the transcript after the trial and after the motion reconsider was filed because when you look at the transcript of the closing arguments mr schott sighs this is clearly marital property didn't make an argument how does anybody even know how to see the other side no to put out evidence concerning when there's a concession in in that in the in the first argument that and also with longo that they retained earnings were being used to purchase additional property and then that's where that retained earnings can be marital and that's inherited property they took that property got financing on the property and purchased the three mcdonald's they then use the income from the freeman donal's to pay off the loan that was secured with a number of property and that's exactly what happened in this case and that it should them to no longer have a part in the business they came up with the number of two hundred fifty thousand dollars for his share of stock there after they entered into an agreement where his stock would be retired or be deemed and based upon that he w hundred two wife received from her father forty two hundred shares of stock at that same time her brother her two brothers also received forty two hundred shares of that stock about a month later the one brother they decided wasn't fit for the business so they bought out his forty two hundred shares of stock when doing that the wife signed part of the notes on that then later on when the father was about to die he read  this fourteen hundred shares of stock similar in this case the wife in blunder didn't do anything to increase her shares or ownership of the stock and said that stock was deep in blunder the court found that that increase was nothing to reimburse and there was no proof a contribution from the merrill state that's true in this case there was no marital assets that were used to pay back across instead he was paying it out of the corporation she never actually ate anything out of the marital assets for that stop based on that we believe that that increase that you did not exert any effort to think is ownership in that just a m house and and the personal effort of the husband didn't didn't change his ownership in the company he was doing the same thing that he had been joint like and one day he had been doing the same thing he didn't do anything different to increase his effort well in blood it doesn't it doesn't talk about what the effort is the personal effort yes but if you look at what his effort is it remained constant and then as the shares as the shares redeemed and his ownership interest went up is the and my final issue is with regards to the calculation of child support the court ellen had an expert testify to items expenses that were being paid out of the preparation those two things  sorry yes she's made health insurance and since the corporation would no longer be paying that that then that would be money that would go to the way however just because that he the corporation may not be paying six thousand five hundred four dollars does not necessarily mean that dollar for dollar that money is going to go into its pockets and so there could be tax advantages for him paying out that insurance which he's not going to have now i believe the court erred in finding a dollar for dollar reduction for the six thousand five hundred four dollars likewise with the life insurance premiums the corporation was paying the life insurance surance premiums as you recall the life insurance that he had a million dollar cost himself was being used to secure the broadway property so he was using that income one thousand six hundred fifty dollars for the business expense to pay on the life insurance which was actually corporate expense because that's what was being used for property and this and i'm ordering the attorneys to come back with me come back to me with a net income figure so you make the proper calculations to be adoptions what should be protected i couldn't find anywhere in the record were anybody ever ma argument to the trial court that that sixteen hundred dollars was there to secure a debt or later the court issued an order that said he had to keep that life insurance in effect to secure payment of child support how much expense but i never saw anywhere where and come back to me with that figure and and my assumption is that's what happened the attorneys came back and said here's the next figure and they did make a deduction and that i didn't see anywhere where anybody are due came back and said we can't agree on what the appropriate we think it should get a good option for the life insurance because it's securing the debt on the business well and i'm not sure that you know i wasn't the counsel so i'm not sure what what those conversations were with the judge even if it wasn't considered a business expense even even in remarriage a pile which is a district ninety two case even in that case when they said it was you know part of the business expenses should be part of the deduction and as for the court making the initial finding that two should be included in its income i would not be able to stand here and tell you today what was going through the minds of the prior tourney's of why those two things weren't adopted our argument is simply that those should not have been included at all in the pro for days of hearing that head in this case is court and see from the record in the memorandum of findings judge bailey entered a sixteen page memorandum in regards to what his findings were had the opportunity to see hear the testimony and look at the credibility of the of the witnesses and even after the first judgment was was entered there was a motion to th security for the child support in and for the maintain for the security of the child support in the main so why would that then become i mean i just think nobody argued it maybe i'm wrong but why wouldn't they have if you were looking at this brand new and you don't have the trial record to worry about isn't it a legitimate argument to say them is gross income to arrive at any method ordinarily i agree with you that life insurance if you're paying for your own personal life insurance and corporations picking it up its income to you i agree with that and i agree that normally regular was he was required to maintain it to secure his child support how much expenses so yes it would get included income but on the other hand wouldn't he be entitled to it didn't got ssion because those amounts were expended for the have the business debt and for the time well again i think i don't know of any cases that will necessarily that that expense would be able to be corrected from his gross income because of the fact that it was expensive  have to consider in any case like this we have a situation where the corporation is solely owned by one individual that controls many things and he controlled his what he was being paid as far as salary order requires both jisshu respond and to complete your asked list the non marital property mr mcintyre did not list the real estate commercial real estate is not a marriage and that was not only signed i think what is probably as important if not more important is that in the hearing scheduling order the series of pretrial affidavits including any attachments exhibits shall be considered by the court hearing unless an objection there to  steyn prior to hearing there is no objection filed by mr mcintyre you know we preceded from day one really up until we received notice of the appeal and the issues to be ra that the that the commercial property was in fact merrill we have cited various arguments in our brief to support that you know that the emissions are controlling and that really should be denied least the stock mr sharing with you can see that judge bailey misclassified the increase in value as marital property under five zero three zero seven should have been classified as non marital and then you decide whether marital status or entitle to reimbursement well i you know i think i think an argument could be made that it would be that the stock of d whatever happened or however you did it was that mr macintyre in the end with one hundred percent ownership of of the company of the restaurant because what i'm getting at is so in the trial court you argued that there was an increase in value of the stop nobody argued it was purchased with a distribution from the company in other words this was a five or three day seven issue and not a five zero three eight issue and and schmidt the case that the trial court rely on was a five point three eight case involving a distribution from a corporation purchasing property ok but then i think we get into the next step is to as far as the money's being paid for you can always be paid out of the corporation worth the testimony that significant personal efforts on behalf of mr macintyre cost a substantial appreciation in the value of the stock in fact where is the testimony that the stock appreciated well again i think the stock value that value of the corporation was to begin with you know so how can anybody determine whether there was a significant appreciation for breach again because of the only thing it would be would be the sale price compared to what a well i guess you compared initial contribution which was thirty thousand dollars on this difference in the value of the corporation right but then i think as far as the stock and with what the value was it was that's the only answer i have would be the value that was established by the parties when the when the stock was redeemed by the corporation for the two hundred fifty thousand dollars and the fact that there was a dead i think at that time one hundred sixty five thousand dollars  and shouldn't be included that should not have been a dollar for dollar increase to my client's income because the corporation is paying that the corporation has a reason that they're paying the security debts then the next step to that is if it is considered corporation was not paying the six thousand five hundred four dollars that does not necessarily mean that those on the six thousand five hundred dollars are in the wind pocket that's that's the corporation in a corporation albeit the tim can decide to talked about distribution property lundahl didn't didn't get into whether or not retained earnings and i think that opens the door for a whole line of cases that me soon you have hear of whether or not retained earnings can be used  so i think just a pretrial memorandum may say something one way doesn't necessarily mean that the trial court by the way and finally with regards to the increase in his stock ownership again i don't believe that there were his personal efforts contributed to the increase in the value of stock