good morning this is just because speaking we want to thank you all for agreeing to conduct oral arguments remotely before we begin let me make a few comments about our format today just as if we were in the elgin courthouse you will be given your regular allotted time when you are not arguing as jeff pointed out please mute your phone in this case there is a cross appeal so mr a does the appellate process probably will have fifteen minutes for the main clerk of the court jeff kaplan mr kaplan will let you know why this signal when there are five minutes remaining in your main argument the purpose of the five minute signal is to ensure that there will be times for questions from our panel as is our practice in the nd district we have all read the briefs and we d are familiar with the facts what will be different this morning is that we will not interrupt your argument with questions as we usually do conducting oral arguments remotely makes it awkward to proceed in that manner so we will save our questions until you complete your argument keep in mind you do not need to use all of your time certainly if you complete your argument before the signal invite us not to ask questions we remind you that no one except the clerk of the court is permitted to record this proceeding today do either of the lawyers have any questions about our format today before we begin you know i know you are on very well that mr  robert's income which was precipitated by considering the evidence prior to the entry of the july th in order in violation of the statute in common law and the nd was an arbitrary calculation of maintenance that resulted in a windfall for susan without enough and sherry basis i'd like to st address the substantial change in circumstance and the findings of the court the court found as part of its decision that the only expenses at the time of the entry of the july th order that miss cotes had were her pooled expenses new to these for the former marital residence which was the conclusion that was blind by the record of the susan was receiving inpatient treatment at the time of the order there was nothing in the record to support the conclusion that the two thousand five hundred dollars per month bateman's was tied to her hospitalization the order doesn't state as much and it was meant to be a temporary order it would have said so and either date would have been set for further proceedings after the discharge or there would have been a reservation of the issue at a later date it's noteworthy that susan didn't subsequently file a motion to modify the two thousand five hundred dollars per month order until some seventeen months later in december of two thousand and seventeen in fact the only logical reading is that the initial on allocated family support award a five thousand five hundred and eighty three dollars per month for susan and their three children which was pursuant to their judgment for dissolution of marriage and also occurred at  time that susan had a majority of the parenting time with the parties three children was reduced roughly in half to account for the fact that rob was taking on responsibility solely for the children upon  that order in fact susan's own testimony was that she had no increases in her household expenses since the entry of the two thousand and sixteen modification order all the or that discretionary expenses and proving her new residence having sold the marital residence that she was awarded in the judgment and purchase of a new one and in fact a real estate taxes in a utility is that because based misquotes testimony  was that she had spent a one hundred and eighty thousand dollars two hundred and eighty five thousand dollars and two thousand and eighteen in connection with her personal expenses to demonstrate that the said she was receiving was  adequate and we we contend that that was not supported by the record note did introduce records from morgan stanley reflecting the reduction of four accounts but produce no account statements or credit card statements or any other evidence demonstrating for use of the money so the mere would duction of the accounts doesn't constitute credible evidence of an increase in her expense needs there was simply no evidence as to how that money spent whether it was spent on attorney's fees or unproven sure home or other categories that would not constitute a substantial change in circumstances warranted an increased maintenance award the court also violated the time period that was permissible to consider in determining whether a substantial changes taking place we know that it's the party seeking the modification  bearing the burden to prove that a change in circumstances has had occurred but were a modification has been so more than once the trial court is to consider only the facts that occurred since the last modification hearing to alter the award only from his employment in two thousand and fifteen and when a objection from trial counsel was raise the objection was overruled and the court stated i think this could go to the change in circumstances to the time of judgment until the modifications that style of demonstrating a lack of appreciation for the time period that was permissible the court also accepted roberts severance agreement from two thousand and fifteen into the record fashioning not only the finding of the substantial change in circumstances but the ultimate maintenance amount or did the court a finally also accepted extensive testimony regarding susan's suicide attempt and expenses and roberts in comp all of which were improper under the holdings and connor's andersen and that's the and if the court had limited the consideration of that evidence from only the time period between july th two thousand and sixteen to the close of troops in january th chain the court would not have been able to conclude that there had been either an increase in robert's income or increases in there must additionally be a change in the expenses of the support receptor and here during the operative period susan testified that she continued to own assets of approximately two million dollars still lived in a large for  home real estate taxes that decreased for utilities decreased some of the expenses for the children that she had claimed on a financial after day that she was no longer occurring and the only household expenses that had contradicted by the record by her own testimony she is employable testified that she no she is a good teacher knows that she could be hired as one and needed to update her skills in order to be more marketable yet in tw seventeen she sent resumes to thirteen school districts put in twenty million one hundred and eighty two thousand and nineteen made no effort whatsoever to become employed she further abandoned updating her education that would increase her employee ability stating that the sixteen thousand dollars that is the cost to obtain that continuing education was too expensive notwithstanding her two million dollar the court also failed to consider at all of the thirty thousand dollars on earned investment income that she had available to her from her assets so the evidence required to find a substantial change calculation of the maintenance award was arbitrary and reasonable the only competent apis of susan's expenses were her financial affidavit claimed it was six thousand eight hundred and fifty seven dollars amon acknowledge that seven hundred and ninety dollars of which he was no longer currying so her expense needs were six thousand and sixty seven dollars per month without consideration of her investment income or  reasonable income that she can earn the court initially correctly ruled that mr cote's income exceeded the five hundred thousand dollars guideline threshold and he did not have to strictly apply those guidelines in the  additives the court back into a number that was two times what her stated expenses were in the financial affidavit that she submitted and while i have more to say on the subject i'd like to give time for questions and i may be able to get my other comments sent during that period thank you justice arts and your questions  questions we didn't really discuss mr a to sustain our standards of review here which often guide our analysis and the result tell us why the trial court's reasoning or rationale was ultimately used and applied actually two different formulas one for the maintenance and one for the child support didn't bear a connection with the evidence because the evidence was that she had expenses at the time of the hearing of six thousand dollars but the award was twelve thousand and fifty eight dollars and there were no findings and no evidence importantly than the need for that money or that money represented a deficiency in lifestyle so while there was generic testimony about what the lifestyle was during the marriage there was no evidence presented that she was  unable to do things that she did previously and if there was such deficiency what it would cost in order to make up the difference so it's definitional ie arbitrary where there is no quantification of the alleged efficiency between the prior maintenance award and the lifestyle enjoyed during the marriage to resuming the change in circumstances do i think that that while the words ways to the condo were not used by trial counsel the argument was repeatedly made that evidence relating to substantial change in circumstances  the outcome is exactly the same that offends the well established rule to allow that evidence to come into the record so your argument is that you can make evidence free objections during a trial and then trial judge that have the case prior to the hearing that limited the period of time that evidence could be considered and the case law is clear and was argued in trial and was objected as all d of this evidence  sixteen was being offered that it was not permitted by law when we look at a substantial change in circumstances we look at the status of the parties at the time of the entry of the order and compare that to the status of the parties at the time that the increases are quite correct that is correct there is evidence in the record is there not that supports the trial court's finding that there was a substantial increase in robert's income to warrant an increase in may there needs to be an additional finding by the court that there is an increase in the needs or expenses of the the maintenance recipient order to justify such an award and in fact in a marriage of s d the maintenance award was rejected the request for the request for an increase was rejected now it was standing the staff the husband had a greater ability in that case to pay in this case susan withdrew one hundred and eighty thousand dollars two hundred and eighty five thousand dollars from her brokerage account two thousand and eighteen correct that's correct court  concluded that that was a quote equivalent of the commute accumulating correct that is correct isn't it settle precedent to the spouse seeking maintenance should not be required to sell her assets or sell his  or otherwise of pay or his or her capital to maintain the standard of living that they she was accustomed to during a marriage that's absolutely true but the interesting thing about the presentation of the absence of evidence in this case is that while the evidence was presented showing a withdrawals from the account during two thousand and eighteen there was no evidence presented stablish in how that money was use there was no way of knowing because her credit card statements weren't presented or any other form of proof as to how that money spent years ago that suggestion is that she was just doing this is a set up that your suggestion i'm not suggesting that it was a set up but i am suggesting that it is a complete deficiency and that didn't mean it's not for the court to conclude that the money was spent you request a twenty five thousand dollars a court order twelve thousand dollars from that's correct and during the marriage home renovations and travel or custom that was customary during a marriage correct circumstances and if the court finds that the petitioner has met his or her burden they go on to consider whether and to what extent the support should be modified so is it your position mr harris that the consideration of factors evidence of what occurred in the marriage the parties lifestyles is not relevant to either step of the analysis no i think that clearly it's not relevant to the analysis as to whether there was a change in circumstance from the last minute and so ward to the date of hearing series of years and that the family vacation together but she claims no evidence as to what dollars a month would be required in order to make that  difference and alleged fishing so the result is what this court reversed and in re challis where there was a percentage order that was on related to a specific dollar figure of need  outside the confines of the parameters in considering evidence predating the order is it true that we can affirm on any basis appearing in the record is that correct that is correct the court allegedly or you know based on your allegation departed from some of the considerations that you allege should have been considered but we still believe the court did not abuse it discretion in making the determination of a substantial change in circumstances and its consideration of the factors would we still affirm you would although i think that i would phrase the question a little bit differently in the sense that it's not so much what the court didn't write specifically to him it's it's it's what was stuck in finding a substantial change in circumstances the court considered this is storable income and then relied on the historical income in reaching the maintenance and as i said previously if you focused solely on the evidence that could be nineteen to support a finding that susan's expenses had interest that there'd been a substantial change to her is true isn't it that the trial court more than one occasion had stated in announcing its ruling on the substantial change that it was making the determination based on a change in circumstances since the entry of the two thousand and sixteen agreed order is that true i think that that the answer is ask you the final point question even if the court alleging conflated some factors the court announced in its oral pronouncement that it was considering only those circumstances in the chain since the th in order but you said times of the court went off and considered other improper factors if there is sufficient evidence in the record to support the court's findings notwithstanding this departure you're referring to again wouldn't we still form  issue was a two step process to occur st the petitioner bearing the burden of showing the substantial change in circumstances since the last order and nd the one that burden was not what the proper amount of maintenance shall be i'm mindful that your owners are all well aware of the fact there are a few facts i'd like to highlight because i think they are important for the arguments that i'm that i'm going to make here and they are that this was a long term marriage it was a sixteen year marriage with three children and susan was a stay at home mother since the st children the twins were born and that robert was employed as a trader during the marriage and also was a business owner holding various percentage interests and different restaurants in naperville and hawaii the parties were divorced in june of this scene and at that time robert had been laid off from his employment with r s w only a couple months before and it was also anticipated that his other related business felt they all would also be dissolving and that is that is acknowledged in the terms of the marital settlement agreement and so then it was a few months after the divorce that susan was  the mental health treatment centers and that she had attempted to take her own life and following that suicide as times she was hospitalized for over a month and during that hospitalization bad one the order was heard that modified the primary care of the children terminated on the allocated support and the two thousand five hundred dollars support award that's in question here and that was the approximately one year after the war so that was entered and at that time as of july two thousand and sixteen robert was not yet earning the significant income that he had been historically making during the marriage and that's something important that i'll touch on in a few different ways susan said file her petition to modify maintenance and december of seventeen based upon the substantial changes the whole robertson come and her own and what i'd like to point out about that is that counsel had alluded to the fact that that student waited seventeen months in order to file this motion and that time period of delay the not does not matter there's a recent case out of the nd to stricken and remarriage of izzo that specifically address that the time difference that it's has occurred does not does not matter it simply was there there's a substantial change since the last order how long it took her to file the motion is the relevance so here the trial court did look at and thoroughly analyze the factors of five times of the i am g m a one it supported the substantial change in modification and also agreed that at least three substantial changes occurred since july two thousand sixteen both have three categories one being roberts increase in income to the changes tax filing status and rd the increase in susan's needs in expenses either way you look at the  st factor of robert's income whether you look at his distributions taken or total taxable income it did significantly increase the distributions he took from his primary operation went from zero dollars in two thousand and fifteen to over dollars in two thousand and sixteen most of which was while was all after the entry of the two thousand and sixteen order and also again one million dollars over one million dollars in two thousand and seventeen and then even when you look at just the taxable income not just the distributions that also increase nearly five hundred thousand between two thousand and sixteen and seventeen or a fifty four percent increase what's important to know here and this relates to the nd factor once we get there going back to a level of income that robert earned during the marriage which is specifically the time period that section five hundred and four is directing the court to look at robert ernst significant income during the marriage after around one million dollars and that supported a lifestyle in the last full year before he filed for divorce two thousand and twelve here and over a one million dollars and really has increased and then come here merely resumed the level of the current during the marriage and did not create some new windfall as set forth in the case that council cited here this morning now well only one substantial change in circumstances needed to meet the burden on i will run through the other citizens expert witness in the score so explain the importance of the tax selection via a written report and testimony by making this tax representation the trial court actually found that robert treated bell vale as a pursuit for the production of income as a livelihood as opposed to a long term investment and this fact shows that robert reinvented the company bell vale and treated it as a trading and so they either earn income after the entry of the two thousand and sixteen order  and rd citizens needs and expenses that increase i'll be asleep as as as council argues here today this appears to be where robert place most of the most of his focus pick susan's needs and expenses and argues that the trial court erred in its findings but what what faile what robert fails to focus on is the factual differences and susan's needs and expenses since july of two thousand and sixteen and susan when susan was hospitalized s attempt the trial court d actually found that susan had nominal expenses when she was in patient health insurance was covering most of her day to day needs and she testified that the only outside expenses she was incurring was her monthly p maintenance fees and utilities along with those health insurance premiums she was not she was not living outside of the hospital she did not even have parenting time that she now does with the children she was only focusing on living at that time and as  your honour's question and susan's deficit can be shown by looking at the overview of responding the one hundred and eighty two million one hundred and eighty five thousand that was withdrawn in year two thousand and eighteen alone that was presented  through a vote luminous exam exhibit which was not only the withdrawals that were taken from the account but also as counsel incorrectly argues here today the exhibit itself do line item show every expense withdrawal that ms coats made from the account that have debit card transactions for every place that she used the money at because as she presented this was an account that she could regularly be accessing to withdraw money so it's simply incorrect that ms coats did not provide throughout the dems the the day per day expenses that were being withdrawn from that morgan stanley account and she was not cross examined that any of those expenses were unreasonable now since the substantial changes were have occurred since the entry of the last order the trial court was than than needed to analyze the living and lifestyle during the marriage but in determining the appropriateness and the level of maintenance the key here to look at whether it's excessive or not quibble is to look at the factors that are mandated and five las the i am g m a and those specifically include the lifestyle of the marriage the contributions the spouse made to the other's career and any impairment the spouse may face by devoting time to domestic duties or forgoing employment during the marriage so much of the evidence that susan presented about the timeframe of the parties marriage was was only being presented to support what the trial court was required to make findings on that are directed specifically reversed the trial court's findings of precluding and disallowing evidence in a modification proceeding of the time period during the marriage for this for the same reasons that  presenting here today being that they are directed to be considered under five flash bible five so so here are the relevant trying theory and for the comparison the lifestyle is the time of the marriage not the short lived artificially reduced income that our robert was generating at the time that the july two thousand and sixteen order wasn't heard there was evidence that there was an affluent lifestyle and the court made such i don't think he used the same affluent word but did say that there was a high high standard of living that lived in what susan described as an exquisite six thousand dollars square foot house with five bedrooms six bathrooms four finished floors the party spent four hundred thousand renovating the house they traveled extensively to italy napa valley mexico and related places in the few years leading up to divorce and regularly get engaged in expensive activities dependent care cited zero cases to support a claim that this amount is excessive are grossly inaccurate of all to robin roberts given their marriage lifestyle there were no cases cited were a spouse makes over a one million dollars a year and is paying anything less than taxable maintenance of twelve thousand dollars per month as ordered by the court after a trial you know i'm mindful that non guideline maintenance cases are very fact specific then analyzed on a case by case basis per statute but we did cite cases with similar high wage earners with corresponding high maintenance arguing the amount of fees or unreasonable but rather that will form consternation finding and and i'd like to point out that neither judge thirty dollars at the hearing on roberts motion for involuntary dismissal nor judge really agreed with roberts interpretation of the judgment language that required to produce the copies of his tax returns and that at best robert had a mistaken interpretation that is still not sufficient for cause or justification or at worst the  actions by with withholding tax returns and information from susan and reinventing the business felt that all was a deliberate attempt to avoid paying properly calculated maintenance and that either way a finding of no compelling  justification was not an abuse of discretion now today and throughout his brief the pope really tried to create confusion presuming that the trial court was somehow confused by the relevant time period or also confuse the evidence that was that was presented on review here the continued reference to the judge's comment during a ruling on the i would ensure objection is really it was one  suicide attempt the trial actually found that susan had nominal expenses when she was a patient health insurance was covering most of her day to day needs and she testified that the only outside expenses she was incurring was her monthly pool maintenance fees and utilities along with those health insurance premiums she was not she was not living outside of the hospital she did not even have parenting time that she now does with the children she was only focusing on living at that time and as presented through a vote luminous exam exhibit which was not only the withdrawals that were taken from the account but also as counsel incorrectly argues here today the exhibit itself the line item show every expense withdrawal that ms coats made from the account that have debit card transactions for every place that she used the money at because as she presented this was an account that she could regularly be accessing to withdraw money so it's simply incorrect that miss cotes did not provide throughout the dems the the day to day expenses that were being withdrawn from that morgan stanley account and she was not cross examined that any of those expenses were unreasonable now since the substantial changes were have occurred since the entry of the last order the trial court was then than needed to analyze the determination of maintenance and the trial court maintenance says and decision here is not excessive or grossly and i quote a bolt from robert if anything a higher level more instead of th on our cross appeal as it relates to the standard of living and lifestyle during the marriage but in determining the appropriateness and the level of maintenance the key here to look at whether it's excessive or not quibble is to look at the factors that are mandated and five las a and those specifically include the lifestyle of the marriage the contributions the spouse made to the others career and any impairment the spouse may face by devoting time to domestic duties or forgoing employment during the marriage so much of the evidence that susan presented about the timeframe of the parties marriage was was only being presented to support what the trial court was required to make findings on that are directed specifically reversed the trial court's findings of precluding and disallowing evidence in a modification proceeding of the time period during the marriage for this for the same reasons that  presenting here today being that they are directed to be considered under five slash five hundred and five so so here are the relevant trying to carry out for the comparison of the lifestyle is the time of the marriage not the short lived artificially reduced income that our robert was generating at the time that the july two thousand and sixteen order wasn't heard there was evidence that there was an affluent lifestyle and the court made such i don't think he used the same affluent word but did say that there was a high high standard of living that lived in what susan described doesn't exclude is that six thousand dollars square foot house with five bedroom six bathrooms four finished floors the party spent four hundred thousand run invading the house they traveled extensively to italy napa valley mexico and related places in the few years leading up to divorce and regularly get engaged in expensive activities dependent here cited zero cases to support a claim that this amount is excessive or grossly and i quote a bill to rob rob or given their marriage lifestyle there were no cases cited were a spouse makes over a one million dollars a year and is paying anything less than taxable maintenance of twelve thousand dollars per month as ordered by the court after a trial now i'm mindful that non guideline maintenance cases are very fact specific then analyzed on a case by case basis per statute but we did cite cases with similar high wage earners with corresponding high maintenance our wards in our response brief and those include the he roy and nor decision were maintenance was set at twenty seven million seventeen thousand based upon income levels at one million one hundred thousand or twenty five percent of the husband cash flow so there certainly is case law out there to be supporting high levels of maintenance with high historical weight during a certain during the marriage now the opponents a nd contention that that was raised in the briefs although actions by with withholding tax returns and information from susan and reinventing the business file veil was a deliberate attempt to avoid paying properly calculated maintenance and that either way a finding of no compelling cause  justification was not an abuse of discretion now today and throughout his briefs opponent really tries to create confusion presuming that the trial court was somehow confused by the relevant time period or also confuse the evidence that was that was presented to review here this continued reference to the judge's comment during a ruling on another bench your objection is really it was one it was one ruling that that judge reading himself corrected that he never did again throughout the trial during all of the remaining i would ensure objections he continued to use and he used throughout his lengthy written ruling the relevant time period for comparison and nor did susan even allege that the comparison time period was the time of the judgment the evidence continued to be presented solely for the purpose of the nd step in the process of the determination of the proper amount of maintenance now on cross appeal susan has is arguing to the court that the trial court here did miscalculate roberts income from all sources during the relevant time period of the party of marriage when it set a cap and that the result is that the award should have been higher now gross income for purposes of maintenance and section five hundred and four of the i m z m e i n b m e means all income from all sources and that's within the scope of the phrase the five hundred and five the child support statute whether nightime constitutes income for purposes of maintenance is a question of law and that's reviewed de novo and that is pursuant to the rivulet case that came out of the nd district in two thousand and seventeen it is not the current income that the trial only considered robertson some from the to keep bell veil during that time period but in fact that was not the totality of roberts income sources at the relevant time the evidence showed that between twenty million ninety two thousand and fifteen determine the cap here he only was looking at one th of robert's income streams from his various business sources and so the trial court's goal that of setting maintenance pursuant to the lifestyle of your questions i just have one for counsel i'll do you respond to opposing counsel as argument that even though the judge had said he was basing the consideration of a substantial change in circumstances only from the date of  agreed order the record reflects that he did depart from that in the times considered factors that should not have been considered on that specific st step what's your response to that argument my response is that when the judge considered evidence prior to the entry of the july two thousand and sixteen order it was only being done to meet the factors and it was relevant stuff factors that are laid out and four on the nd step of the analysis as the court did in his lengthy written ruling the trial court analyzed the factors and the facts that related to the time period of july two thousand and sixteen to the present for the st factor and those are the only fact that he used when analyzing the st steps and when the trial court then made the conclusion that susan did  burden and did find substantial change since july of two thousand and sixteen that is when the door was open for the judge to be considering those facts that all relates to section five hundred and four when determining the appropriate amount of maintenance to step process you're saying the court didn't conflate those factors the court's consideration of those factors was based upon the statute that says when you consider to what extent to modify the only on the nd point the nd factor correct because this was not a proceeding that was bifurcated into two steps nor is that the norm for these modification proceeding the court is is given the duty to take the as a defense and apply it to which factors and which staff it relates to and that was what was properly done here could you tell us specifically in summary form how the court again erred in  when it sets a cap was determining what robert's income was asked that relevant time period and by excluding the income from chive other business interests and areas of employment that robert had during the marriage goal in so many words was setting maintenance pursuant to looking at the lifestyle of the standard of living during the marriage and so by only calculating one of those six income sources th it's artificially reducing what what roberts income was during the marriage and so based upon the de novo review of whether or not these other items constituted income for purposes of maintenance those should have been included his his related business r s w where he was a partner with the same man at the time that he was partnered with del valle that was excluded from the analysis as well as the other restaurant operations that he had and real estate operations that we have that he was working for and so those of those other areas of businesses and related business unemployment income it was an error by the court to  for income well given what we're going through right now it's likely that those interests are going to be devalued right correct they'd like to think t well what i would say to that is that the purpose of that extra income right now would not matter for for purposes of where the court said such a cap because right now what was presented at trial is that robert's income from this one entity alone is more than what all six of these entities were at the time of the marriage so by studying that path if you set the cap the total income from all sources that he had during the marriage these additional business interests would be essentially part of the exclusion of calculation after entry or at the time of the two thousand and one teen order and there was also testimony that robert was currently in litigation to to dissolve his interest in those businesses so so for purposes of how even if those businesses were out of zero rate today at the time of the order that was not focused on because the income from bell they all alone was more than the six business interests combined at the time of the marriage thank you very much with  amount that was awarded twelve thousand and i don't believe the council could could or the trial court could explain how it got to the twelve thousand other than just creating this formula that on aware of any other case happened at applied any more so than she could at twenty five thousand these are arbitrary numbers that are not connected to the evidence that was presented  and i would say to you that that you know respect to this dusky decision i think that that decision is incorrect in the sense that it states that life style is mandatory lifestyle is a mandatory consideration reads the word of clickable out of the statute but i think it's a little bit of an academic discussion in this case because i don't argue that the court has the discretion to consider lifestyle but it's what is the quality of the lifestyle evidence that's presented that i would ask your honour's to focus on is it possible to hear that generic testimony of life style and then double the award that the petitioner claims that she needs in terms of her own expenses six thousand dollars without consideration of the other things i mentioned imputation and ability to earn income on her own but simply misapplied them i believe that that what i think of as i argued there was i believe that there was an error in a finding of a substantial change in circumstances in the st instance but if you accept that there was an appropriate finding of a substantial change then there was a mis application of the lifestyle factor if that's in fact the way that the court justify this retro stated calculation because the court didn't say i find that there is a six thousand dollars deficiency in lifestyle and said instead  income doesn't equal lifestyle this is these are parties that divided up approximately five million dollars of assets at the time of the entry of judgment so they obviously didn't spend all of the money that they made so  there was a leap of logic there that i don't believe can be found anywhere in the record to support it the court misapplied one of the statutory factors is it your position that that would automatically mandate a reversal just stating that the the number the maintenance award was arbitrary because it cannot be associated with the evidence presented  expenses and increased the maintenance award five times from the july sixteen awards was based upon this notion of lifestyle but didn't didn't have sufficient evidence to quantify instead picked a income number for the maintenance application that were prior to the entry of the divorce and prior to the entry of the commodification order and watching you would you agree that the original award was clearly insufficient for susan to live a lifestyle that she was accustomed to during a marriage i would not income because the focus of this litigation has been the modification of an order that came after the judgment i can only make survey sions based about having read the record but i can tell you that in cases with income and access to five hundred thousand dollars the focus becomes less on the income of the sport pay or because you're not plug in playing numbers in a formula all you are a value weighting the expenses the needs than the lifestyle of the recipient in determining whether or not as board is appropriate so i think that it's and this is what was i was getting at earlier when i said that there's a conflation here between income and lifestyle because we know that based upon the s t d case that it may not matter whether someone's income increases or not if the maintenance that is awarded is sufficient to cover the demonstrated needs and lifestyle of the recipient so  entire approach of you know looking back at three divorce income i believe was erroneous to begin with i think that the that the court could have been should consider current you talk with the bottom and this is this is only brief because i i'm going to you know carefully lend my my reply here to only the issues the cross appeal but i would like to point out once more with a little more detail the difference in the income that robert had during the marriage that was not  considered the trial court is still even if the thing non guideline case compelled to analyze and determine the pay yours total income one dollar determining the proper amount of maintenance and there was no findings as to why the judge would have intentionally x clue did the related business interests are s w where robert was employed on a day to day basis nor were their findings why the the percentage of business interests income were derived from those of the various restaurants in the real estate entity and why those were excluded when when looking at determining what the growth income was for  purposes of a cap what what did the parties benefit from during the marriage whether it's benefitting by savings and retirement savings whether it's benefiting by spending the money and lifestyle there was no indication that the lifestyle and the standard of living during the marriage would be supported for susan if you only analyze it on less than five hundred thousand dollars it was clear when you looked at the last two years of the marriage that fact that that's robert has had financial success while above that eight hundred or one million figure he's been over that he's been over one million four hundred thousand dollars and she is not conceding the fact that maintenance should not be determined on that x the amount that he earned after marriage however we do submit that this was an error in calculation by x clude ing the other sources of income robert had when the trial court set a cap and that the result of that is an artificially reduced amount of maintenance for susan here thank you court thanks both counsel for your arguments today for to particularly for participating remotely this is obviously new for our court the court will take the case under advisement and a written decision will be issued in due course thank you so