benefit that existed in her ex husband's pension account through the state of illinois at the time and was earned during the marriage and the reason we're here today is what we try to do was  why she felt she had an interest in the death benefit that existed in january two thousand and four so that we could introduce evidence of the fact that the death benefit did exist what the value of that benefit was and  i did cite poll i was allowed to give some argument there was no record in which is why we did the bystanders report which is attached but but i think that at least under the the cases that i property all the existing property was allocated why is subsequent effort to increase the spouses their share of property hard by stop by ju well i don't think we're trying to increase what i'm what our position is is that she was granted one half of the marital retirement that included them at the time th pension code did not have a vehicle where that could be distributed to it at the same time the coast said the quilter o which was what is used to divide the monthly benefits shall not apply to affect the fisher but i don't see why that couldn't have been accomplished at the time but the original trial well you know i don't either i think that the the wording of the order opens up at least more than one interpretation and i believe that under some of the that's marital judgement divided into half but only mention the allocation of a monthly amount now i think the miers case is pretty clear that there must be an express waiver or clear expression of their spouse's surrender of an interest or that they go away coal which was a fourth district case dealt with so a very similar scenario to what we have here with the exception that we are seeking modification verse implementation of a new   the argument in coal was well the judge said the passions valued eighty four thousand as of april twenty ninth ninety nine and we should split it up the wife after  as granted the ability to do this dozens argument was very similar where mr grubbs argument is in this case book that wasn't allocated before goldsboro bars if from being allocated later cheryl until the law was changed on july one two thousand and six coal allowed and i mean it was reserved jurisdiction brooch which no  we do have an unfortunate situation here that mr grubbs has passed away since the initial filing of our motion so if this is really sent back to the truck or we are going to lose some ability to taint testimony obviously from his point of view but i still think there is enough evidence that can be brought to the table that would satisfy the elements needed to show that number one the death benefit existed number two what the value of that was number three what was the inclusive period of the marriage that should be considered here and number four what should be allocated cheryl by way of a modified will  one thing that this this case has similar to us the case called sniff that i cited too is that the record is not really too extensive here there's there was no hearing in the underlying trial there was no hearing for our recent motion were evidence was introduced so there were basically left to kind of reconstruct this case  based on what was there and i've reviewed the entire record i'm sure each of you has this well and nowhere in there is there mention of the word death benefits until cheryl filed the underlying motion that we're here for today so it was not addressed previously the fact that it was not addressed doesn't mean that it goes away that she doesn't have the right to it i think that now the law but i think what we're relying on more is the principle behind it that you know you have new laws better law that allows you to you know devise something that someone you know was awarded why not i don't think they were prohibited from doing that based on the case that i am here to preserve jurisdiction yes you are correct they did say i will do all of that later but what they were allowed to do is use the new law to deal with an old order which is essentially what we're trying to do and we are not asking too much to open up the judgment we're not asking to modify it we're only asking for that property right just been in limbo to be given to  mr scott's contention that there was no hearing this however hearing was when the judgment for dissolution was entered at that time the parties agreed to address the solution and they signed an agreement that that's when the property rights were vested that was when the contractual property rights were invested and that was the appropriate time for a hearing at that time would have been the time for the parties to discuss how much the pension was and what portion each party got and the judgment  was no evidence but the court had the judgment for dissolution of marriage and the culture in front of it to review so that there was no necessary evidence needed if this is the first quarter this ordered if there was a trial now there wasn't a trial these parties agree and that's certainly something that ms brandis did not did not ask to be included or at least it was not included in the memo settlement agreement so  and certainly here it's our position that this supplemental or modify paltrow that mr scott was seeking was to change the the benefits that were received not to enforce the intent of the party and i know mr scott use the cold case and a good writer pointed out that his was much difference in the fact that there was no culture of enter after the time because there had been no mechanism for division the court used the quote drill with the laws that were in effect at the time this case is different because there was a mechanism of division already in place the judgment stated that the benefits will be divided pursuant to a folder and then the cold room was entered the same day as the judge and i believe that's a very important distinguishing factor between culp and the court didn't allow that stating that the drill had to be entered giving effect just to those terms that were in the courtroom because they couldn't change the terms couldn't alter the terms of the agreement that the parties had originally ri was entered the same date that twelve zero had specified amount and it had nothing further in there and the judgment had nothing further about the death benefits as mr scott pointed out the words de is asking for additional benefits that were not part of the original judgment and for those reasons we believe the court did not air when it denied the motion to modify the will grow and we believe that this court should affirm the trial court's denial of that motion to modify based on the fact that this is not an appropriate case for evidence to be heard given that  the documents were there for the gesture of you and also given the intent of the parties were in the documents and certainly they retroactively retro active nature of the application of the law that readily available in many cases certainly the implementation date shows but i just read legislative intent for that last year prospected application certainly the law was passed in two thousand and five  done before that they would look out over that we don't know that as a matter of fact your honor but i don't know why it would not i don't have any information that tells me that they couldn't have if you look at the judgment in this case these parties had one major marital asset they had a home which had no equity in two cars they did buy it up and then the only major asset was  action of mr grubbs and for anyone to think that cheryl would wear her right to any and all marital benefits on that if that evidence was allowed to be presented before the court i think you know that would away and were open for a hearing before that so best evidence enough second best i'll get you on that but i will point out that this was the only major asset that these people were providing e not ideal i do think we do have a way that we can prove intent of the parties or at least what was known to the parties at the time by way of introducing evidence of other people excluding any statements of mr grubbs obviously  i think this is a property right cheryl does have some protection on the passage to sion that's why we're here i think it is one that the law recognized was missing from the bench code which is why it was probably changed to add