may please the court counsel my name is john wall and i am here on behalf of the appellant jeff wells i would like to refer to him as the father in this particular case and carol wells as the mother we are here on review of the re decisions that were entered by the circuit court in this case it has been a longstanding proceeding initially the parties were before his honor charles reiner in two thousand and eleven on visitation issues in may of two thousand and eleven judge reinard bifurcated the visitation issues from the financial issues a determination was made by judge reinard in october of two thousand and eleven relating to a visitation issue the only per ticket or error that were asserting with respect to that visitation finding is the right of first refusal the other two issues that we are asserting before your honor's today relate to child support determinations that were made by judge reiner to one in august of two thousand and twelve and then a subsequent determination in july of two thousand and fourteen there was a long period of time between for consideration by your honors with respect to that august twenty sixth and is a language that is in the actual judgment of dissolution of marriage of the parties and relates to  an entry of an agreement by the parties in this case relating to a downward deviation of the parties in two thousand and seven september agreed to sat child support at a reduced amount from the statutory guidelines and in fact the specific language in the judgment of dissolution suggests that the downward deviation was determined in september of two thousand and seven to be a nine hundred dollar downward deviation at some point in time a mother decides that there are tax consequences that she may experience as a consequence of that particular nine hundred dollar off sat as it's mentioned in the language of judgment of dissolution being treated in some manner as downward deviation forces me and she files up petition to modify  to suggest to the court that there was a substantial change of circumstance based on the treatment of that downward deviation by the i r s in two thousand and nine judge sue looked at that decision and sad i'm going to leave it to the i r s this is not a decision for this court to make a decision and then in march of two thousand and eleven mother files a two count petition seeking to modify the child support downward deviation and terms it maintenance she asserts in count one of her petition to modify that the fact that the tax court has embraced particular treatment of that nine hundred dollars downward deviation created a substantial change of circumstance in count two she then asserts that the economic change in father's income in two thousand and twelve or two thousand and eleven compared to what it was in two thousand and seven supports its own substantial change of circumstance and so the parties and the judge reinard went forward on that petition seeking modification there was a hearing where we actually presented evidence by mother and father and mother called an accountant to relate the nature of what that nine hundred dollars did in terms of mother's tax return but father asserted certainly throughout these proceedings that that nine hundred dollar reduction was actually a downward deviation from the child support guidelines now the statutory langer the language in the judgment order very specifically sad as that that downward deviation shall remain for a period of five years and shall be consider in future decisions of any child support modification so judge reinard in reviewing that language has to make a decision on how to treat that particular provision and apply it to the parties going forward now to just nozzle had an example of how you applied that deviation downward deviation of center whatever we're calling it correct that is correct your honor it did indicate by way of example that if fathers actual child support obligation was going to be sixteen hundred dollars then actually the application of the deviation would make his child support payment seven hundred dollars and we argued that that certainly was evidence to suggest that it was a downward deviation from the statutory guidelines as opposed to a maintenance on we would assert that the language in the judgment of dissolution clearly relates to an office at and that the downward deviation was in fact an offset from the statutory guidelines the mother in this particular case argued successfully to judge r that notwithstanding the fact that it was a downward deviation from the statutory guidelines it had a sunset provision and that after a five year period it was no longer given any consideration how was that not a reasonable reading ability had dates on when it was to be in effect well i would assert here honor that the additional language in the judgment for dissolution of marriage doesn't actually say it's a sunset provision it indicates that it shall be a fact if for that five year period i would assert that that claim language means it's not modifiable during that five year period and last there is a substantial change of circumstance for example if mother lost her job at i b m would she be able to come in and then argue that the deviation wasn't appropriate i think she could have done that but i think it required a showing of a substantial change of circumstance the language goes on to state that the that the offset or of the deviation shall be considered in future instances of modification of child support and it doesn't it's not limiting in that respect to that language and then it goes on to say it shall terminate in the event three particular things happen and so i would assert to your honor's that because it's child support because it was a determined and agreed to down more deviation from the guidelines that that particular circumstance is in play going forward any time the court considers what the appropriate child support amount would be i think any time parties are in of business in a date see if it's forever well it only indicates the date set offset of nine hundred per month shall continue for a period of five years shall be considered in future instances so i read that at a minimum it is emplaced for five years and last there is a showing of a substantial change of circumstance i don't think that we can read that language as a sunset automatic provision without giving off fact to the second part of that language which is shall be considered in future instances of modification of child support and i guess my assertion on father's behalf is that even if the judgment of this solution doesn't spell out that it should be applied in future instances certainly the circumstances of the parties that were presented by the evidence that was presented to judge reinard coulier lee under section five zero five require consideration why the trial court on whether or not there should be a dom where the nation judge prior to actually finds that in the inheritance piece of his water in july of two thousand and fourteen he has centrally size as a sit g judge giving consideration to this issue of substantial change of circumstances i have to weigh all of these things including the factors under five zero five that would support a downward deviation so i would assert on behalf of the father that even if the judgment of dissolution the language didn't say that you should consider this in future child support modifications that the court has an sure and i don't think that's necessarily inconsistent with what i'm asking you i guess my question is is it your position that some time during this five year period this deviation was not considered no i think nobody sought to have it changed until twenty eleven march of two thousand and eleven attack point in time mother asserts to have this downward deviation changed because she says my circumstances ha changed and those circumstances have been substantial in that i thought i was going to get a tax relief benefit out of this language and now i'm not in your position is the language to lose her from asking the court for that really no i think that language proclaims her from getting relief unless she can show a substantial change in circumstance and the trial court said you failed to show up when you were talking about the tax treatment because both parties could have addressed that issue in the judgment of dissolution i am simply asserting to your honor that that five year period i think the parties agree in open court in two thousand and twelve we're not going to review this for a five year period by child support is never non modifiable in my opinion i think if something significant had happened to mom and she lost her job she would have been able to come in and file a petition but then we have that saving language in the judgment of dissolution which that has really not withstanding this time period the downward deviation or the off so we walk to the courts language in that order that does not include language that would suggest what you just indicated that but for a substantial change of circumstances it will be made by mother but i think the plain language of the agreement sad as it clearly is a downward deviation and the example that is given in the language shows that the intention of the parties was for the child support to be determined and then a nine hundred dollars deviation was to be done and i would assert to your honor's it was because of the large disparity in their earning power of both of these individuals and certainly judge reinard in at the june eighth hearing after we concluded evidence really struggled with is this a downward deviation or is it maintenance and after he reviewed the plain language of the judgment of dissolution it clearly characterizes it as a downward deviation as opposed to me once and i think whichever label we put on it has an impact perhaps on the tax consequence but on the going forward relationship with these parties and how it relates to who contributes want to take care of the children i'm not sure it's as relevant what label we put on it because the consideration by the trial court should be how do we provide for the needs of the children how is that really that obligation shared between the custodial parent versus the non custodial parent and by virtue of what judge reiner determined did he create a windfall as this court noted in bush was not an appropriate consideration for child support i think the substantial circumstances of these parties regardless of how we label it there's merit in evaluating the level of support of dad against what mom's income is and in june of two thousand and twelve father was making seventy thousand dollars that's about an eight thousand dollar increase from what he was earning in two thousand and seven mother testified that her lowest income hundred thirty six thousand dollars so she had earned six times more than the father in this particular case and yet father is given no relief by the court after that petition by her in march of two thousand and eleven it is file because it's essentially ok now your child support by virtue of what the statutory linus is seven hundred two dollars every other week so fourteen hundred four dollars a month and if we applied the downward deviation he'd be at about five hundred four dollars a month for child support and with the increase in income that he had from zero seven to twenty twelve that probably is an appropriate differential but without giving any consideration to the statutory factors and whether or not that downward deviation should continue is sensually judge reiner took this father from payments of four hundred dollars a month to fourteen hundred dollars per month which i would assert is a windfall creates a windfall in child support in particular one mother has a substantial income she also testified in june of two thousand and twelve that all of the children's expenses were being matched that father paid extra curricular things that mother was able to meet their expenses and actually she testified that her house and will expenses were half in two thousand and twelve what they were in two thousand and seven because her significant other was sharing equally those expenses with her i would assert here ours that notwithstanding what their own language says in terms of downward deviation off the trial court had an obligation to give consideration to factors under section five zero five and if we have apply for an all decision or the cook decision or this court's bush decision aside from the language in the judgment of dissolution on any petition for modification it would require the trial court to weigh those things i would assert to your honor's that the trial court in this particular instance abused the discretion in that way and it's it's really substantially shown in the july twenty fourth teen decision that judge ryder meets on the inheritance piece because he acknowledges right in that decision that because of mother substantial in and because of the other circumstances that were proven during the course of the june two thousand and twelve hearing i believe it's appropriate to apply a downward deviation so he chooses to do that on the single pane and of an inheritance that father receives and i would agree with mother's counsel that it is a two prong test on that inheritance first whether or not it's going to be considered in because of the fact that it's a one time single event and then secondly whether or not it's appropriate to apply the factors of a downward deviation and judge reiner clearly says that the circumstances of these parties require a downward deviation to be applied on the an inheritance piece but exactly the same time he chooses to ignore that on the child support obligations and i would assert that those are legally and if actually inconsistent and that they weren't abuse of discretion i understand that that's a high standard but i believe in this instance that the decisions warrant a reversal of judgment hundreds decision on those two orders i will just briefly i relate to your honor's that the one additional issue that we appealed was actually an alder issue that we have fields when the cases were bifurcated on visitation to support the one remaining visitation issue that we had sought review on was the right of first refusal our brief lays out pretty well i think what the argument there is under two six zero seven that we have a circumstance now the of first refusal where father's rights are actually subordinate to the grandparents rights now counsel will argue that that issue was not properly before the trial court but both parties at that time had filed come p d petitions for visitation and both of those parties in their petitions for visitation asserted that this right of first refusal provision had not been appropriately applied and actually had been abused in certain circumstances judge reinard specifically in his october twenty eighth two thousand and eleven order says yes that trip to ottawa that mother took was a you know i don't come down here and defend something i don't know when i lost at the trial court level very often but that is what's happened here and it makes for a set of unusual facts i would ask that you you start your review of this by looking at the appendix i am the one who filed motions right i found a motion because my client had a significant other and we wanted him to be able to stay with the children when she traveled much like the grand you're right there is no other pending petition i was that the judge said no to the parent more now that's not going to happen and yet i'm here defending something that happened a long time ago because the judge said well that's become an issue so i'm going to clarify so that said there was no pending petition to change that i ask that you look at the record there is no pending petition with regard to that issue so now let's go to the second issue and i i was listening to argument i thought am i wrong i want to double check this no the only person who had being petition to modify the judgment dissolution was me again and it was a two count petition the first count term start was the first count was on this issue of this nine hundred dollars and look at my pleading i asked the court to let us write a check for nine hundred dollars and said his child support of appropriate amount that's what my prayer or relief was i didn't ask that he call it maintenance i didn't ask did he do anything other than have this write two separate checks that's count one count two was simply to say these have an increase in child support if we find recent child support i didn't ask to get rid of the nine hundred dollars deviation i didn't say we shouldn't pay a nine hundred dollars deviation for five years i simply said in count one give me a two step process and count two he's had an increase in his and give me my child support much like have to an increase in child support and then you offset what that is within the five years so i lost him i was twice and yet i'm hearing in this those are the two things i lost on what did i was going on why am i here i'm here because the judge who bothers hey calculated thirty two percent for three children and gave me that thirty two percent some crap jane nine hundred dollars for the five year period that the parties agreed to that's all the judge did the judge gave me thirty two percent which is exactly what the statute realistic to think that we were going to go by years without an increase in child support we knew that in five years people would come back and see an increase in child support that definition then says whoa ok in that future instances go ahead increases child support but in that five year period be boosted by the nine hundred dollars and that's what was done counsel has raised the difference on the issue of the income of the party quite frankly that for my client was paying m diation oh the agreement says that that downward deviation is going to terminate and i will show you that your honor we also put in our documents or in the darkness for the child support calculations up see we've got all the math in there all the math about how he is giving credit on the retroactivity what the increase was and how that works and so he was given credit for his nine hundred dollars through september the nine hundred teenagers are preteen i'm pretty sure that the seven hundred dollars buy we wait that mr wells is paying we feed them because a few fat pre adolescent adolescent boys you know weren't going for us the evidence i'm going to use that story guidelines and this money is going to go into a trust and therefore appropriately said you can't just have the child support going into a trust for the people and the statute doesn't allow that that's nothing along the lines of  have an increase and it's a result in increased support which was actually considered and that's why in the court order about how that was going to be handled in the future i think there's this really no way got a request deviation when that deviation but isn't that one of the factors the court always has to consider insetting child support whether or not a deviation is appropriate absolute and i think the judge brian or i think that  sound and i think that judge greiner was following that case law that we've set forth because we gave it to him at that time in terms of where the court was on the the inheritance we it isn't a lump sum payment like that and i think the judge that they're trying to follow that prior case law in mayfield in broader and in others by setting their child support at that  i'm sorry it's twenty percent receive fifteen thousand dollars that he we only receive twenty percent of the law some payment and so i think i don't mean to be made out of this argument but i mean that's the only argument we'll see petition for d h and there was not the titian to continue this past five years there was not of the issue to say well let's call it maintenance and extend that maintenance there was nothing along those lines in terms of where what  was probably going to get me this for about five years at a rate of around five hundred dollars this my client made more money no dispute so he got his five years of maintenance in the form of a lesser amount of time that was the benefit actually strengthens if you look at what it was originally done and then have jetliners interpret it he actually strengthened father's rights significant i just i don't understand how that even comes out because again there was no petition to