compensation is clearly against the manifest weight of the ample and unrebutted evidence presented at trial that evidence showed that although his income had steadily increased over the years until hitting a one time peak in fiscal y down to twenty three dollars he testified that the only compensation that was guaranteed was his annual draw five hundred and eighty thousand it was only after the end of the fiscal year that he would know the remainder of his compensation court overlook some contradictory evidence and instead adopted an unsupported finding that michael averaged a guaranteed annual income of three million two hundred thousand dollars plus an additional amount of undetermined variable compensation it was based upon this that the court kristi's maintenance at twenty eight thousand dollars per month shortly after entry of the dissolution judgment in feb th seen michael filed his motion asking the court to reconsider its income finding based upon two main points st that the evidence at trial showed his only guaranteed compensation was his five hundred and eighty thousand dollars draw and all other components were variable and not guaranteed and nd that there was new evidence that was nineteen he lost ten capital points which were eight point more than the two he testified he thought he may lose the trial this took him from twenty five to fifteen points which was an unexpected forty percent reduction court simply stated that it had contemplated all the facts raise and his motion and found that there was no newly discovered evidence which was not available at the time of trial the fact the stablish however that this is impossible that the th could have been previously contemplated by the court again it is a disputed that the th was not in existence at the time of trial and further at trial even michael himself did not foresee this huge forty percent decrease in the capital points with the loss of ten points and a decrease in his base draw of two hundred thousand michael also requested to reopen proof to include the new information but that begs the question of how the court could be aware of this this court has held in sherman vs crimes the trial court as the finder of fact is obligated to consider all of the evidence and be of the court gave no indication that consider the significant new evidence that more accurately reflected michael's current income and that the court repeated over and over the incorrect statement that no newly discovered evidence was presented as how the carp how it is important improper to base an income finding on the mere possibility of future financial resources or an outdated information that no longer reflects prospective income because the court did exactly this here christi received a windfall in an increased amount in eight months at the same correct ruling evidence and the division of that interest that was in that these that discretion simply put the court valued unequally decided what it called an asset even though it had no present value and therefore was not defensible the stipulation the stablished only a ceiling on any possible value of the partnership interest that allied with the partnership agreement it did not establish that the present value was the same as the account balance those were two different things payout of anything from the capital account is only a speculative expectancy and it is not property to be divided upon dissolution worth yet michael was forced to take three hundred thousand from his own separate liquid portion of the divided assets to satisfy this judgment with no guarantee that any money would ever be dispersed from this account creating another went to call for christie and yet another in equity for him requiring reversal on  reconsideration the court also erred in rejecting michael's proposal for alternative relief based upon the formula in re marriage of hunt if the court indeed had wished to value this account which was not presently divisible they could have treated it similar to an vested retirement assets were uncertainties also exist as to present value investing the court never addressed this proposal and its ruling moving on to his rd main issue michael show that the city bag six hundred and thirty seven savings account requires that a court equitably allocate both the parties marital property as well as their marital to this over they all use the marital state three hundred and fifty thousand because the court refused to either account for that s marital debt or to allocate it equally between the parties this release kristie from bearing any part of this marital liability it also forced michael to pay the parties three hundred and fifty thousand marital tax steps from his own separate assets as he was forced to take three hundred thousand from his separate assets to reimburse christie for the partnership interest in total he was six hundred and fifty thousand dollars worth off than christie even though the court's goal was a fi petition for a modification of the knights award in a to six point five moshe the court must use the allegations in the light most favorable to michael taking astrue all reasonable inferences drawn from the well created facts as we explain michael sufficiently state of the cause of action for modification showing a significant decrease in income that served as a substantial change in circumstances accordingly it was reversible error for the court to dismiss his petition dr good afternoon your honor is understand part of your argument is that the trial court phoned in michael's monthly draw in its annual distributions to be guaranteed income said correct yes that's correct you direct me to where in the dissolution judgment the trial court made that specific finding your honor i believe that it's a reasonable conclusion based upon the court's judgment the amount i understand you're drawing what you believed to be a reasonable inference but would you acknowledge the court never specifically used the language guaranteed income is that correct that yes your honor that is correct guaranteed was never there but to read it any appears that way around here it's a little bit sketchy because there is no indication as to how many years the court used in its judgment the court stated that it used several years but never said exactly how many years and even christie and is and i believe that in christie's grief she also cited the frequent case for exactly that proposition but she overlooked frissons further holding that a court should not base net income findings upon the mere possibility of future financial resources and neither should it rely upon outdated information which no longer reflects prospective income and present itself cited to cark hell which we cited in our brief for that for that same proposition and in those cases income averaging was discussed and i believe that it was it was approved in those cases but it also gave the copy at that when you're doing that averaging that also a court should not ignore year and he had already been told that he was going to continue his decline and that was on contradictory that there was no contradiction in the record of that that's the evidence that the court had and it was evidence that actually was c d later on after the trial had ended and after the fiscal year had ended so again we do not contest that income averaging may be appropriate there is absolutely within the discretion of a court to do so perfectly into my next question about michael's dissipate a reduction in income or the overarching issues you've alluded to and as you said michael specifically testified at trial about his anticipated reduction in income but also didn't the court explicitly refer to the fact that it was taking that into consideration in arriving at his decision yes you're right your honor the court did state that within its opinion but again as as we detail in our brief that the court that the evidence showed otherwise it was against that was against the manifest weight at the evidence of the evidence showed eighty klein three million two  thousand was the evidence was not contradicted again that his income was on the decline and i think what's very pivotal is in addition to the errors that we can tell that were made during the dissolution judgment or in the dissolution judgment itself i think even more striking is how the court handled the motion to reconsider because again this case is a little bit actually unique because of the way that the fiscal years at th points he had lost ten points and he had only a trial believe that he would lose only two points so that would have been an eight eight percent reduction in his points which is which is what he believed at trial by the time he received as compensation statement for to go your two thousand and twenty in april of two thousand and nineteen it was confirmed that he would actually have a forty percent reduction that is a huge reduction that was not contemplated that that time but it was presented to the court as we detail in our brief it is impossible upon reconsideration for the court to have considered the new evidence which was not in existence at at that time of trial and again we believe that that  is very very clear that there was error on the reconsideration motion with regard to the motion to modify the maintenance award how would you respond to the argument that the motion was essentially premature because it was premise the court believed that as well the court that this was speculative the court was was wrong there really was no risk no speculation here the forty percent reduction in equity points was documented in the fiscal year tw twenty statement again that was issued by michael's firm in april of two thousand and nineteen there was undisputed testimony at trial that equity points directly correlate with his income this is why his annual and your honor the historic compensation reports that are part of the record here and also exhibits to the record all of those compensation reports from michael's firm that show his past compensation they support that this is not speculative the last time that michael had fifteen dollars was in fiscal year twenty four t n if you look at that fiscal year two thousand and fourteen compensation report that's in the record is total compensation was one million one hundred thousand and that shows the direct correlation between between the number of equity points and also his compensation so in addition to his testimony that there was course correlation these historic happened sation report supports us as well so it's our position that it was not speculative that the court had before it all the information that it needed and i also would like to note that in that motion to modify michael also requested that the court consider making the modification temporary and that revisiting it but for for that time and it was it was clear the writing was explained in our brief to the score this is interpreted similar to a contract and the rules of contract construction require that the contract must be viewed as a whole and clauses or provisions must not be looked at in isolation and detached portions of the document cannot be looked at on their own as we explain in our brief there are five sentences to the stipulation and the  sentence the st sentence a stipulation provides that the parties agree that the value of his partnership interest to the extent that it has a value at present is limited to at most a balance in his these are linked to specific provisions in the to article three of the two thousand and seventeen partnership agreement that partnership agreement was incorporated into the stipulation and it was attached to the exhibit a to that stipulation these provisions cannot be overlooked in interpreting the entire five sentences of section two of that of the stipulation the rd sentence stated that a president michel is eligible is not eligible to receive a payout in the future from this capital account and the value of it in the future if as and when it is dispersed has not yet been determined and that as you said before sentence states both parties also stipulate that the present value of michael's capital account held at listen strawn is any amount of six hundred thousand dollars again we do not believe that you can look at that four sentence in isolation it is conditioned upon the prior three sentences as well as the incorporation of the amended and restated partnership agreement that is explicitly incorporated and attached as a sip it a so i have of this time including included fact that his two thousand and nineteen compensation and i think two thousand and twenty compensation would decline and the points would be reduced how was it an abuse of discretion that the trial court refused to reopen the proof that the trial court had that evidence via testimony yes your honor you are you are correct that there was testimony about that the klein but i discussed with justice hudson the testimony at trial didn't reveal the entire picture that evolved after the trial concluded again the fiscal year had not concluded until one month after the trial and the evidence that was presented on the motion to reconsider and also would have supported the motion to reopen prove that was client that what michael had testified to at trial again at trial he he would lose to equity points which would have been eight percent of his total points instead he lost ten which with the forty percent and that directly correlated with a two hundred thousand dollars drop in his annual draw to three hundred and eighty thousand dollars and the court i would like to note as well with respect to the motion to reopen produce the court did not a draft this at all in the motion to reconsider it never mentioned the motion to reopen proof there is no ruling specific ruling on the motion to reopen proof there is silence from the court on this and as we know in our brief there is ample case law including andrea stated the new and the greater liberty should be accorded to reopening proof and bench trial just specially respect to the court the opening prove here this was the witness that was there was a reasonable excuse for failing to submit this because it did not exist you know the very significant the points as well that's a two hundred thousand dollars drop in his compensation that in concrete form did not exist at the time of trial and there was no opportunity to introduce it again because it did not exist it did not result in surprise or unfair prejudice to chris davis has michael as you point out to testify at trial that he did know that he would have a decrease and there was no prejudice because  to present that during the still that the the dissolution proceedings and to dispose of that would have been more true they would have been more judicially economical than having to go through a motion to modify which eventually had to happen the evidence was the most important that was a key issue in determining michael's income and christy's maintenance and there was no culture reason to deny the motion was stated by the  court if it doesn't again it didn't even mention the request and i have one other question with respect to the bank account then michael we asked in the trial corn courts reliance on the job or st eighteen that evidence was in the record the november th evidence was was in the record it was this this particular account as we detail in our brief this particular account was the only account that was characterized as marital despite it identical arguments being made to all four of the accounts that they were not marital and both parties viewed the orders underlying where the funds treated these accounts inconsistently and that because of that that was the only reason that the tax issue that arose there was ok thank you i don't have any other questions that have not a trial court it's wanting its rationale for why it didn't give your client credit for the payment of income tax no your honor no no there is there is court abuse of discretion and determining the maintenance to be paid and whether the courts determination of the valuation of the act that was against the manifest weight of the evidence that michael nutter is burden to show that judge cruz abused his discretion and determining the maintenance amount is to show that no reasonable person would have taken judge cruz's view when determining the maintenance obligation it's respectfully submitted that michael has not met this burden and that the evidence supports judge cruz's determination that evidence shows in terms of mr nutter's income that in two thousand and eighteen at the time of trial in early december that mr nutter taking into account is income up to that point as well as the additional two months of the funds that he average for mr nutter would be four million dollars and that the five year average would be three million three hundred thousand dollars the court's judgment correctly noted in quote based upon the last several years and discounting substantial bon and seventeen michael's income can be conservatively averaged to three million two hundred thousand dollars per year this is what the evidence has provided in the courts properly applied and income averaging of those years to come to that determination in of maintenance this was also properly by the court you had nearly a twenty year marriage the court enumerated in detail the lifestyle earnings property acquired lack of debt and other factors that supported the years as the court found some credible testimony with respect to a plan retirement age fifty five dollars michael being forty nine years of age at the time of trial the court addresses this argument by providing a judgment section five modification language indicating that michael as other individuals would have would have the ability to file a section five hundred and ten dollars modification motion if you were to retire this is noted in documents  dollars of the judgment was also appropriate and well within the discretion of the court the court originally set that amount of maintenance the twenty eight thousand dollars per month and then reduce it after the motion to reconsider the twenty three thousand dollars the parties come to miss not or at a higher amount than what was shown in the evidence that it occurred over the last five years prior to the marriage the duration of the marriage and nineteen years and eight months the court correctly did not give weight to the argument that christie had filed a prior just prior petition for dissolution of marriage that was dismissed in may have two thousand and sixteen the court address the station occupation finding that these parties were relatively young that michael was a partner in a prestigious law firm and christie's employer was not merely that of michael's and also finding that both parties that contributed to both the acquisition of assets as well as wealth during the time of the marriage michael was found to show that hundred and seventy six thousand dollars per year would still be accurate and fall within the discretion of the court it would not have been of use for the court to find that two hundred and seventy six dollars per year was appropriate as the court correctly noted this was necessary to maintain the lifestyle the parties are accustomed to during the marriage including the ability to further say for retirement if michael focuses on the twenty three thousand dollars being realizing that she would have the ability to contribute to a retirement at the court found the parties did throughout the marriage in conclusion on the issue of the court's findings only supported by the evidence that was provided during the trial and michael has not and thirty seven account at five hundred and fifty thousand words against the manifest weight of the evidence michael is also failed to show that the courts determination six hundred and thirty seven account was marital subject a division was also an abus attempted to reduce the future value that of that account or attempted to testify that there was no value the stipulation showed to the contrary and michael concerned that during the marriage he had paid six hundred thousand dollars into the firm into the capital account for the points as your honour's have reviewed paragraph two of the stipulation and correctly noted line number four you could not avoid the parties stipulated that the present value of michael's capital account was six hundred thousand dollars in the address in the other sentences of that same paragraph paragraph one discusses that if there is a value it's equal to the capital account which was supported by the exhibit of mr macdonald email also put into evidence through this exhibit the next sentence the nd section sentence provides for how and when those that payments can be received michael disability or withdrawal from the found it would not provide that there isn't a value provided when the value we would be received the rd sentence indicating president michael is not eligible to receive a payout from his capital account value of that in the future if any is not determined that's accurate because the three provisions provided for when he can receive it had not yet occurred so the future of an a doubt occurred but the part is still entered by stipulation as the account was valued as of october thirty want twenty two million five hundred and fifty eight thousand one hundred and fifty eight dollars and sixty eight cents that was supported and furthered in michael's closing argument as attached to his exhibit b the tax that issue was not raised during the time of trial but was raised as part of the motion to reconsider the tax that was not listed in exhibit b attached to the closing argument or listed as a debt of the parties so cordingley that was not evidence at the time of trial so the court properly found based upon the manifest weight of the evidence that the value of that account at that time of one thousand and thirty one dollars of the team was five hundred and fifty eight thousand the court also probably found that these funds were marital course of litigation would be construed as is not income december one two thousand and seventeen temporary support order did not provide any language to that effect so accordingly judge cruz was proper  finding based upon the manifest weight of the evidence that that account was marital subject to distribution in regards to the motion to reconsider your honour's have already a drunk's the arguments that were made by michael in regards to the reduction of was within the judge's discretion taking into account the amount of net fund party would have due to their earnings under the motion to dismiss the motion to modify that was properly granted as michael as in the motion to modify it substantial change in circumstances that was already considered in the motion to reconsider during the santa trial and we would ask that your honour's were to affirm judge cruz's judgment are welcome any questions by the court justice hudson do you have any questions thank you good afternoon mr good afternoon justice tell us why the trial court was not required to at least reopen the proofs in order to consider michael's upcoming income as provided in the april twenty nine thousand dollars exhibit that of course did not exist at the time of trial but the facts did with anticipated earnings that michael would have in two thousand and nineteen the court already had before it the testimony of michael as well as his earnings which would show as we provided in our brief the yearly income that he would receive as of two thousand and eighteen december he was already at three million three  his testimony providing for the reduction or anticipated reduction in his earnings as testified to provide a special bonus for the additional five hundred thousand dollars bonus as well as  testimony already provided for rep that reduction would entail so the court would have already reduced the five million dollars from two thousand and seventeen to an anticipated four and moving forward i think michael's application of fiscal year underwent an in strong versus calendar year under tax return and end of your paycheck stub cars and some of the confusion to try to create a basis that i will make less money when the facts presented to the court at that time show what the funds were in the gross income that he received in the course of the court making its findings alluded to i believe in essence said some of christie's monthly expenses were inflated correct that is correct why doesn't that call into question the propriety of the amount of the maintenance award in this case because i believe that the court review many different factors one of those factors was in addressing the lifestyle of the parties and addressing the monthly expenses that the parties were used to on that lifestyle the evidence showed thirty thousand dollars a month was spent in those the inflation was christy providing thirty two thousand dollars a month in expenses michael's expenses at that time as provided by the evidence was twenty six thousand dollars so i don't believe that it was i proper for the court to estimate an amount between the twenty six dollars or the thirty two dollars given the inflation taking into account the standard of living and what the parties enjoy during the course of the marriage  limited to at most the balance and so my interpretation of that would be there is a present value that's what's provided in the capital account balance which was afforded at six hundred thousand dollars the rd sentence which talks about the value in the future it adds and when it is disbursed has not yet been determined my interpretation of that is because the defense as provided in the prior sentence had not yet occurred it was not he had not passed there was not disability there was not a withdraw from the firm so that value actually could have raised in the future or lowered in the future as he continued with the firm so the parties could not determine what the value was in the future but the support sentence clearly indicated both parties stipulate the present value was six hundred thousand dollars and michael did explicitly testify that he could not stipulate to the future value of his kept looking around is that correct yes he did because he had testified to other factors that were considered when those points were paid out could be accounts receivable and other issues at that time that is correct your honor thank you that's all i have at this time just as you know if you have any questions yes i do thank you well along the lines of looking at the capital account why ways one of which is that the parties stipulated to the value of the account and i believe that judge heard that anticipated properly that mr nutter would continue to be employed by winston and strawn and continue to gain capital within that killings the partner shall be paid those capital monies back the court at that time could legally provide due to the stipulation agreement of the parties that the value was six hundred thousand and so rob were to occur in the future would benefit mr nutter due to him being employed at the firm working at the firm and being able to grow that capital account ok how was it reasonable to award christy sixteen years of maintenance when michael had plans to retire which he acknowledged in five years that at age fifty five because the court provided the ability for michael as most individuals have to file a section five hundred and ten motion to modify he can come in on a five hundred and ten motion to modify to argue a substantial change in circumstances and his point  retirement at that time that the court could determine in looking at the totality of the evidence at that time as to what if any maintenance should be paid from mr to mrs this was a case that had a nineteen year eight months eight month marriage under those under the guidelines of section five hundred and four that would provide for fifteen years and eight months or nine months of maintenance to be paid so that would be appropriate plus even though the court indicated that there was some credible evidence in regards to it anticipation of retirement mr nutter was not in a retirement plan at that point in the sense that there was no testimony that he was winding down there was no testimony that he was providing other clients other partners as part of retirement wind down there was no testimony that he would be working less this was not a gentleman at forty nine years of age that was already in his pretty retirement plan this the gentleman that was working who quite frankly testified that these conversations occurred past when the parties were together saying we're on track to retire at fifty five dollars if everything continues the court anticipated that by providing the dollars language allowing for mr nutter to come into court with the proper motion to modify it was appropriate at that time ok and going back for just another minute to a final question with respect to the capital divided and dissolution i don't believe so because the partnership agreement would provide that it would be paid out if you were to lose points the quote was a word the court was aware of the anticipated we duction  appoints so we could be aware that these monies would be paid out from the capital account when the point where we do just so under the clause coupled with the fact that he maintained his employment at winston in strawn and was to continue to work there determined to be marital property and the other three were not yet i believe that in addressing the accounts i apologize if i could trust three of the four i know one of the accounts that was michael's there was specific testimony that he had placed into that account designated monies under a separate order that were designated as his non marital so prejudgment distribution of funds i believe it was two account under her name that would be her distribution in regards to this other account the testimony was that it was michael's earnings that went into that account and those earnings were not classified by order or agreement of the parties as being all so that's why that account was properly found as marital and i apologize your honor i don't know the answer on the th account i apologize probably i have no time of trial and as we know again i repeat in our brief originally she requested more than one hundred thousand dollars a month in maintenance the court correctly find found that it was inflated but still got it wrong i believe that we have talked about the fact that christy her her ability to earn income she has a great great potential to earn income paul that as part of the dissolution judgment she received three million five hundred thousand of the american state she's a forty four year old educated woman who is an engineer and she worked eighteen years of the nineteen years of the marriage now in her brief she admits that she is not working by choice this alone shows that the maintenance award was excessive that the amount of the maintenance awards was excessive as she can apparently maintain her lifestyle without supplementing that amount that michael gives her without her own work income as an physicians by the court to cover her needs and counsel mentioned  that christine needs this amount of money to allow her to accumulate funds for her retirement but again we underscore the fact that she is not working by choice rather as the court itself noted in its judgement she has spent a considerable amount of time training for marathons and also iron man competitions michael should not be deemed her guarantor for her for her retirement or for the remainder of  her work life she should work with respect to the duration there is credible the court found michael's testimony credible that he would retire he was planning to retire at age fifty this does not offer any remedy to michael for the errors as to his own with respect to the partnership interest judge justice hudson was correct that michael testified that he could not stipulate that the balance of the account of the partnership account was the value indeed the evidence shows that the balance does not it's not quite to the value just as economic you're absolutely correct that sente  establishes that this is a speculative expectancy and it is not property the stipulation must be read as a whole and michael testimony is important here that the value of the account could be zero if the receivables exceed what he has in the in the account and at the time of trial via two million dollars and receivables and if he were to leave or was to be terminated it would completely wipe out whatever was in that account because it would exceed it and just to see it off again you correctly note that the hunt approach was a very good option here for the parties under this approach michael could receive credit for his post of divorce efforts and christie could receive her marital interest if and than when the value for that interest if any would be actually received by michael and again michael raised the song reconsideration and the court did not acknowledge it was never addressed the same thing with the motion to reopen proof it was raised and it was never addressed by the court in its ruling on reconsideration so we don't know what the call court thought about the reconsideration motion because it was silent and again in the bench trial a court should lean more heavily towards reopening proof just to make sure that substantial justice is achieved with respect to the taxes to t arise because of the inconsistent treatment of the fore accounts and justice mclaren those accounts were the six hundred and thirty seven the count that we're talking about in our brief is the say you think it's michael savings account if i could just finish this one point about the accounts that six thousand six hundred and fifty six savings account that also was michael's it contained funds receipts from the two hundred and fifty thousand dollars create distribution for the marital estate which was granted under the may th tw eighteen order and then the th account was christie's eight hundred and fifty six city bank account which also help her temporary support payments under the december order and the two hundred and fifty thousand preterists reviews on her her two hundred and fifty thousand dollars p distribution from the may th order in closing as we did count in our brief the record contains ample unrebutted evidence that the court simply ignored in its ruling rendering it erroneous and also an equitable and we ask the court reserve reversed those rulings and we may have this clock causes for further proceedings consistent with that decision thank you very much