know a little homework assignment with a couple questions and i will address those in the course of my argument this morning but i want to start off initially with the question of the maintenance because it fails to follow established case law in illinois and in this district this was a twenty three year marriage i dreamed of course a bad marriage miss life and her husband's job at the end of the at twenty three year marriage she found herself when the power after the party separate with no education and the inability to mr hardy and the sorry was greater than six to one he earned approximately one hundred twenty five thousand dollars a year she earned less than twenty thousand dollars a year when she even earning that much he had a four one k plan which i will speak to just you know in a few moments he had health insurance benefits she had none of those things she had to pay taxes out of her home  cleaning business a salary she had no insurance and she was eligible for cobra which would have cost her roughly five or six hundred dollars a month even the two thousand dollars a month award even that  award is substantially less when the court takes into consideration that she would pay taxes and she would be forced to pay her own health insurance i bet amount was closer to a thousand dollars a month and to two thousand dollars a month and then to add the greater insult to it in roughly a year a year for today she must come back to the circuit court of sentiment county and a step if she has a continued right to receive that make that is not in accordance with a lot of the state of illinois now i will indicate this i know it's always harder to prove a negative than it is a positive but in reading maintenance case and reading quite a few of them and in my experience as an attorney i must tell you i have never ever seen a case where a party has to come back to court in two years and beers the burden of establishing their right to continue to make so i'm sure there are some but i've never seen one and i mean i certainly never saw any reporting of the solution along those lines you look at those three cases you look at them you find a male marriages of substantially the same way as we head in this case and you find spouses who were  about seventeen thousand dollars a year she had a second job she had health insurance and a four one k enjoying the party receiving permanent maintenance was a teacher sure earned about thirty thousand dollars the financial security between the thousand and one each of these cases was far less than the six to one ratio we have in this case history was a teacher she had the benefits the teachers get retirement insurance  happened to be women each in each of those cases was awarded permanent maintenance by this court certainly miss hard to get that same consideration this was a clear abuse of discretion and when you factor in the fact that  and regulations the internal revenue for one k is slightly different then than well the money you get from before one k is slightly different than along if i go to a bank and i borrow fifty thousand dollars the bank might very well say to me what will you flagged as collateral for this long and i might tell them my home or i might tell them stop over there but when you take money from a four one k you take your own money the root regulations clearly say you cannot borrow money from a four one k unless it is vested and you can only borrow them under certain circumstances and the circumstance under which they were borrowed europe was financial hardship you don't really borrow money from a four one k you get the use of your own money from a four one k and what happens is that you with that because the i r s says well if you're taking your own money back from a four one k technically that's income and because what you put into a four hundred one ks not taxed as income if you took it out early it could be treated as income so the i r s calls this advance of and i believe what happened here because it would be the only logical explanation is that when the four one k was awarded to mrs harvey she got that procedure at some point if the four o is an example had been had a value of twenty five thousand dollars and mr hardy took out six thousand dollars that would reduce the value for one day the people who for one k the employers i'm not going to give you back money i think you have already borrowed it would say to states a similar situation to a cash value of a life insurance policy if you take cash from a life insurance policy before that your death you don't get that before it was distributed to mrs hart mr hardy probably paid some of it after you borrow the money back in regular payments to his employer because that's what the i r s code calls for and then that amount sixteen thousand dollars or is it last thousand dollars that only because i do not believe that the four one k the company that both for one cake would give you money that you would give you money that you owed them and with with the understanding that you're just going to pay back the loan it's not really a loan in this in that sense of the operation careful so you are socially factors but he can point to one of those factors there isn't one of those there is one of those statutory factors today that if this i can point to i think this court can point to that council can point to that really  basically no there was no miracle state of any significance in this case and in the piece of marital property that she received the four one k if she lived with dates that she must pay taxes on it because now it clearly will be income by the ir court just resolve that conflict but i would suggest that the conflict is this has been clearly resolved by the conduct of the party subsequent to that up judgment order when the after the judgment order was entered the notice of file the notice of appeal is in our brief and the notice of appeal clearly reflects clearly reflects that the issue of attorney's fees was one of the issues we were raising a lot of appeal i waited to see what the response would be the response was that the trial court's decision regarding attorney's fees was not an abuse of discretion it was it was not an  suggestion from opposing counsel that he should have attorneys fees was somehow not properly before this court because the judgment order said the parties agreed to pay their own attorneys  and want this court to rule on whether or not it was appropriate for miss hardy not to receive any attorney's fees with respect to this case and i believe that the record stay up with us again going back to the court rulings with respect that if the evidence was conflict in the proper court say the reading of the record i think that indicates that the court was somewhat disturbed by some of the testimony that heard through the from the children regarding this issue about cleaning projects he did so they had a financial relationship because he did love her money her and her father i'm sorry his father also lent her money but the trial court the term and this was not a sufficient enough of a relationship to establish cohabitation if you apply the statutory factors and if you buy the cases every case that has discussed this and i know it's a case by case basis but i would simply suggest to the court that all of the cases that have discussed reported case where the vote was on the party receiving i mean it's i've never seen a case now not i have never seen a case where after a two year period of time or even a very brief period of time like that the party who receives the maintenance must come to court and establish their their right to receive that maintenance by allocation of the burden of proof in these types of cases and these types of cases may allocating the burden of proof or else allocating the burden of going forward with the evidence may just be an exercise in the maybe not maybe a meaningless exercise because you know the burden of council i represent mr hardy in this matter addressing the the two questions that the court asked about the six thousand dollars loan on the four one k mr shiffman brief indicates that keep theoretically increase in value it will be returned the wall will be returned i believe what happened was she received sixteen thousand dollars the balance of the four one k but since there was a loan against it mr harvey was responsible for repayment of the loan she received the net proceeds of that or a one k at that point in time consideration should be given to spouses who undertaking to have children raise and support the family and portfolio employment opportunities i while the other spouse pursues their career in this case i think yes isn't wasn't clear as to what exactly was going on i believe the evidence shows that this heart was not all homemaker was not basing the children the parties agreed that she would stay home and raise the children tell they were of school age when the parties got divorced the children are both adults twenty and twenty five yet to show that after the children went to school mr bari encouraged her return to school to further education even got a good role in class at one point but she quit he found her boy she quit she didn't ever seek to further her employment because he took care of all the finances he could he paid all the bills he did all all that nature she didn't know anything about it she just kind of save she was admitted leave having a substance abuse problem during that time period their daughter testified that she felt neglected as a child and that her mother wasn't completely there for her i don't think that is the type of was give her two years of may this as an incentive to change self sufficiency and that you hear if she can prove to the court that she has done everything to try to become self sufficient and has been able to do so he would continue maintenance gave her sixty six thousand dollars she started her business in two thousand and eleven she admitted to having and come in two thousand love in a fifty four hundred dollars in two thousand and twelve of a trial she said her income was twenty three thousand dollars a year i think  to give her an inside job to continue working on your business and we'll see where we're at war council this is a realistic believe that twenty three thousand dollars a year might be pretty much the peak what she could achieve these farmers in a true business i don't i don't think so the evidence shows that she wasn't working every day there were some day she was working there was private investigator testimony that there were days when she didn't go to work she just like four years and then review with the burden on your client would you think about it's not a question of what would be more appropriate it's a question of whether or not just sanchez is or wasn't abusive discretion i don't think that to two i think the burden aspect i think it would be hard for mr hardy to be able to prove miss harding did to become self sufficient i think the evidence is all in her in her grasp in order  accordingly i think it would have been nice had just sanchez made a more labrat ruling but i think judge sanchez is really that temporary maintenance of twenty four months with the ability for her to come back and ask for more was not an abuse of discretion with regard to the cohabitation issue i believe that any made this in itself in this case was an abuse of discretion because i feel that judge sanchez ruling with regard to cohabitation was against the manifest wa yes they stipulated that they were in a relationship it through facebook but that wasn't the only way she acknowledged the relationship through her testimony she referred to mr ross as her boyfriend to say state merely that it was all more of a working relationship as he was only really good through every two years anyway what's the harm he did two years and gave her the ability to to requested additional but i think the evidence shows that there was just sanchez did make a comment on the record about the counsel for both parties need to realize who was testifying and it was a their daughter and that she was emotionally a bad situation and not to press things there all day and all night spend every night there heat help with household chores eat help pay the bills he helped with grocery she ate all those meals there he shared the bedroom closet with the mother equally  they were mingled their personal affairs yes they work together but they were water players of the house and i've never worked with anybody where the father of my coworker would cosign a loan for residence for me i believe that along with mr ross purchasing the bad as well as purchasing the refrigerator in the new home shows that he is establishing his residency there yes he did maintain a moral home on this father's property her testimony i don't really know that you'll have to ask my boyfriend it seems to imply that her boyfriend is soon her for her role in the finances similar to what purpose it had done during the course of the marriage her husband always control her finances now her boyfriend is controlling her finances they vacationed together they ate i spent their holidays together the daughter testified that the mother's holiday plans it all changed since she was spending all their holidays with him i think the evidence was overwhelming in regard to the cohabitation of the the parties so as such i feel th trial at that point in time she had to be called and summoned to court to appear she requested continues in a continuous granted to one thirty at night after sanchez admonished the parties that the issue of attorney's fees for the waste of time this would have been all by easier process but i think given it the evidence and the record the most vile conclusion it is the is the one i presented for is that he considered the ex wife suffered dispute i don't think that the dispute is with regard to her having these physical elements well if she has these physical ailments and a history of alcohol with alcohol and would be able to but she has never demonstrated in the little bit of time that she has attempted to work and start your own business she has increased her business i think  you said there was there was no evidence to lead it is that there's no evidence of that that is was that in two thousand and ten her doctor because of these physical ailments and attacked because of the potential pet contribution of her drug and alcohol abuse recommended she go to rehabilitation she attended rehabilitation after shortly after rehabilitation her daughter testified that she continued drinking and continued abusing pills i think but first as for at the time of the final hearings the most we have is her c p s testimony that i don't do that that's correct thank you very briefly this is two thousand thirteen going to be two thousand and four this is the twenty first century i must say that somehow the notion that given all of the changes we have had over the past decade in the marriage and the solution in the state of illinois and across the country somehow the notion that it's ok for a trial judge to tell a woman who has been married for twenty three years who came into the marriage with a ged who raised two children who took care of the  issues that a woman takes care of in a marital household to tell the out woman that at this point in her life you are going to have to be the one who justifies your need to be paid for continued maintenance you  going to be the one who has to come to the court and say kid keep her makar you know with all due respect this ruling almost treats this woman as if you were a criminal all of us have seen cases where people are on probation they can't pay their fines and the judge says well i want you to keep a list every day what are you going to look for work and you may know this back to me every week and we'll see if you can get a job to pay off your fine that's not the the court spoke to its rulings how the court didn't tell us much but if the court deem that we shouldn't be paid because a lawyer didn't deserve those attorneys fees the court should have said so i think what we have here  that justifies this award other than well she may have been abusing drugs but that's not a statutory fair point she was working five days a week she was cleaning houses and business