the then you know we've seen a lot of cases where no one seems to care about jurisdiction and there's basically nothing that supports that the person's there here he does have a lot of evidence but i guess what i'm struggling with is let's say the court just didn't believe him i'm certain of that was things you know how do we get past whatever we have to be deferential to certainly this court has held repeatedly that although a finding by a trial court regarding credibility is ordinarily the calling of findings which the court would defer on review a credibility finding on supported by the record is clearly eighty four specifically says that in this finding of credibility quote further at the hearing frederick's asserted that he thought the court would prefer copies of the most recent documents rather than those covering june twenty ninth two thousand which was the day to filing and the court goes on to say it's surprising that frederick's as an attorney did not know that the pivotal moment in determining citizenship was the date of filing and that was the basis for finding against him on credibility but the record is replete with inquiries by the district court as to residence significantly prior to the filing date and so when mr frederick spotted those documents in two thousand and one a credibility finding would be unsupported by the record there were documents in discussion regarding his residence significantly prior to the filing date and rationally and of what he did have a lot of evidence i agree with you on that and if the court had found that given on that home but that's tax exemption is available if either of the spouses reside in the home as their principal place of residence and it's uncontroverted that there was no contrary evidence introduced to contradict the just based on the fact that he was found not to be credible because he brought documents substantially after the filing date in fact the testimony at the hearing which is occasion to think about the relevance of that date since then answer not really just to gather up what documents i had on short notice here and bring today mr fredericks gathered up all of his documents he brought them to the hearing they included  nine tax returns which were filed in the year two thousand and close in time to the filing date of this lawsuit they show his nevada residence he brought his driver's license showing his nevada residence he gathered a whole host of documents from two thousand and one but certainly the conclusion that he's not a credible witness because he brought significant amounts of documents out of the filing date doesn't find support in the record and we submit that based upon all of those inferences the fortune of carrying the argument for everyone thank you so much but i think the bread and butter question here is whether we're going to apply andersen versus bessemer city and provide this district court her  deference for the credibility and factual findings that are made i don't think there is any condition or problem with respect to the underlying decision regarding the quote presumption regarding spouse be true that the standard of review was clearly erroneous you cited a lot of things that might supply evidence how do you weigh in balance well i think the most important issue that you raise the issue of what you do when paired when married people live apart and there's no question that under federal common law one of the very important factors to be considered is if the people are marry where do they live and where does their family live l the burden of producing evidence and the burden of proof and when i look at this i think that the district court judge judge patel did in fact correctly require mr frank rich to come forward with proof documentation to show why in fact he wasn't living with his wife well it just it is closer than a lot of cases because he does have a lot of evidence in nevada and that it is two thousand and seven it's not you know t nineteen hundreds where men and women never lived apart so i mean he does give you know he does he does present a lot of evidence but the question is if the court if the court bases its credibility call on evidence that really doesn't go to credibility then that would be a problem if the presumption same correctly applied then you know how do we you know how do we  know i agree with you it would be a problem if there was an appropriate application of the presumption but living law says it is appropriate to look at where the family and the spouse resides and the question is ok so if you're going to look at it who has to that portion of the presumption and the alternative is i think the reason that we do it this way otherwise we as the defendants would have the burden to go out and enquire of mrs frederic's why she wasn't living with her husband and subject that nonparty to expensive invasive discovery putting the burden on the party saying i don't live with my wife she has the dumbest elsewhere to show why that's true and to convince the court that it's true i think is the appropriate way to apply that burden of production well let's say if i look at the evidence right now and it looks pretty even steamy the fact that i'm not seeing the witnesses that i'm not taking the evidence and all of that do you then when i believe i believe i do yes under  andersen versus bessemer because clearly she did not believe this man should not believe him on more than one issue she didn't believe that he didn't understand that he had to prove his citizenship in nevada on june twenty ninth she didn't believe that he had left his wife and  the mother at home in california she didn't believe that he was engaged in only voting in nevada because he retained his california voter registration and you have to understand in the context  basis for her not believing frederick's but i believe that there in two respects i believe that she did not believe him when he didn't question him i'm sorry oh ok not what you page at the bottom of page seven which is eighty four and eighty five citizenship in the that after he had his deposition taken where he had been exposed as much as possible asked about june twenty ninth two thousand and then he still comes to the hearing in presents documents which are only either before or after this relevant time period and do not change the matter in it one way or the other and your honor she actually gave him another thirty days in which to come forward with do think though when you look at the statement regarding the reason when she when she said he didn't come forward enough evidence to meet the burden of production of why he wasn't living with his spouse she she was not convinced by his evidence and whether that's a credibility determination or simply have failure proof it comes to the same result that mr fredericks was not believable in his reason for not being with his six about we can agree that there was nothing in the decision which said that whilst testifying before me he seemed not credible she talks about he i wonder sometimes says you know having been a trial judge because credibility is different in person but i i have to believe there would be some instance where if i just said ok i don't believe someone but there was terms of evidence that indicated you know that i mean there was no basis for someone not believing someone that there could be some instance where you could climb up that hill and overcome it and i'm you know are you ignored other evidence for this man wasn't even able to testify that he was in the data on the date that he claims to be a nevada resident and filed this lawsuit he had complete ability to bring out evidence before the court he was the only one  was even there on the day that it was filed he you know if he tries to suggest that his daughter was not in california but his daughter was in california that's in the record his california bar is his only bar admission that decision will strike us as more than just maybe or probably wrong it must strike us as wrong with the force of a five week old refrigerator did fish now was construed against mr fredericks this domicile of mr frederick why seems to have overtaken the court in a sideways direction and interestingly the testimony at the hearing before the district judge which on and finally it concludes with mr frederick specifically saying she has often said she's anxious to sell the house and left but we may want to wait until our children settle down in a particular place most compelling