this morning is number five dash twenty deaths are a zero for three and raise a marriage or weeks arguing for the apollo and gregory weeks is taking on are going for the apple a camberley weeks is lined harvey each side will have up to fifteen minutes for their argument the apology will also have five minutes for rebuttal you'll see the digital timekeeping device on my screen when time is expired i'll hit the gavel please remember only the clerk of the court is permitted to record these proceedings today the danger here is those in focus on the posture of this case this is not an appeal from a trial all we have is an incomplete paper record is an appeal from a summary judgment there has been no li testimony in open court there has been no lud cross examination there effect issues galore fundamental fairness requires that we go back to the truck were and have a real trial not a paper trial judgment is only allowed when the moving parties right is clear and free from doubt and review the only issue is is there at least one genuine issue of material fact and any one of the essential elements of the claim to which the motions addressed all relevant material must be construed strictly against the movement and literally in favor of the opponent and of different entrances can be drawn from material facts summary judgment is precluded in addition in this case the movement is a party with the burden of proof that means she must establish that there is no genuine issue of material fact on any of the necessary elements of her case  this is a two section fourteen a one claim which is an extraordinary remedy its purpose is to allow a party to undo a final judgment in this case one that was almost twenty four months old by proving certain facts that would does not provide a litigant a new opportunity to perform a test that should have been to pleaded at the time of the original judgment it does not allow a little get relief from the consequences of her mistake or negligence in this case there is another strong policy the policy favoring settlements especially marital settlement agreements and then s a will be set aside only if the assets in question could not reasonably have been discovered at the and each of these elements it is important that kimberly saw a claim for purposes of this summary judgment is if the m s a was unconscionable on its face as a matter of law she makes no claim procedural unconscionable he she makes no claim of dress or the case law cited in our brief unconscionable means that he she did not have a meaningful choice and b the n s a his terms about substantive unconscionable it either they brought this as a you think that it's this court affirmed were set aside regardless whatever they did not count two that somehow they could revive i mean it seems like we have a claim splitting going on here you know our i have not researched i'm fraid i can't give a good answer to that question it's their position that  that for purposes of this summary judgment only they're relying on facial unconscionable and they say they say that they have not waived the other two claims well my concern is if they have not if we're so in my view that would be the situation we would simply set aside the summary judgment and we remand it in that case will proceed to trial live trial but the trial would be on the when there's nothing else to talk about ok i'm sorry go ahead i know there is because then there would have to be evidence against you have to have evidence as  issue as to what damage she sustained as a result of the original property division ok well requires extraordinary circumstances and the only cases we cited in our brief which addressed that issue there was fraud in one case fraud in the court another case of concealment and  obtained an unconscionable advantage through the extraordinary use of court processes or worse some fraud or fundamental unfairness or unconscionable behavior has been shown well the record in this case there is no claim whatsoever of extraordinary use of court processes or fraud or fundamental unfairness or unconscionable behavior and so as we have argued there is no extraordinary circumstances and therefore if it were a discretionary really would be an abuse of discretion but our position is also that the court could not rule on that where the facts concerning due diligence are vigorously dispute in order to make a finding that the that there are extraordinary circumstances do so sufficient to excuse the due diligence requirement there would have to be undisputed facts because this is  corporation right testified she managed five or six employees sign payroll pay taxes paid bills and so for her own deposition corroborates this she was not naive uninformed or unsophisticated in d there's a you know an affidavit from karen williams a friend of both parties who gives details showing that if you really was just as determined to complete the divorce way impaired at that time so we have and those and that's just some of the evidence you're going to be detailing in our brief there's a great deal of evidence to the effect that she was not incapacitated for twenty four months to the values and we know from the petition that the there's an extraordinary gap between what she received in the bowels of his estate your client's estate marital estate leben one million were reviewing the judge's findings after a trial but all we need to show here is if there are factors used we don't know exactly what the value bellevue of the middle state is we don't know exactly what each party share was because some of those items are disputed now we don't know what the scope of the error is but the fact is the judge should not have rule d on any particular value without having made specific findings after a trial where there was evidence presented in open court and cross examination and then the court would be entitled to make a determination as to what the value of the maryland state was but here the court can't do that because this is summary judgment summary judgment is premature in this case we've really there should be expert testimony and we need to have experts on both sides who will look at everything business valuation experts and accountants who can look at everything and testify and be cross examined about the values estate then we'll have real evidence as to what the value of the marital state was and then the court can make a determination ok thank you so much mr harvey you'll be given additional time if you spirited evidence of the back of the dealership's undisputed evidence as to every issue he was talking about if you look at years brief you will not find a single issue that he can detail where there is a genuine issue or material fact for example the value of the dealership's he is client submitted three business or expert reports as to value of each of the dealership's they were never contradicted they were expected by the court we have they are two thousand and twenty one and twenty two to his deposition here is testimony is that he except those values is the bad you the dealerships if you look at those reports those reports include the debts of the dealership the assets of the dealership all of the details about the dealerships and reaches an opinion as to the fair market value of each of the dealerships there is no genuine issue of fact as to that next he submitted financial statements exhibits two and three to his deposition he was asked specifically had paid seventy three of his deposition if the numbers in those financial statements that he listed represent the fair market value of the assets he said they did that is never contradicted what the trial court  arriving at the value of the marital state is the financial statements affirmed by him to be accurate the expert reports of the value of the bigger ships submitted by him debt i mean when you talk about division of a marathon state you're talking about more than just value your the dealership so you have to divide everything at the point to get to their judge look at the personal they are listed there he has been firm their accuracy the trial court had those numbers in passing on the motion for summary judgment and there was no dispute but before the trial court as to any of those numbers and again his testimony was that those numbers it's page seventy three dollars was deposition those numbers reflect the fair market value of the excess so there is no january issue of material fact as to the back of you the marital state they have outed what about justice morris questioned about the diligence and the flexibility  basically said is this that the diligence requirement is not inflexible and that they will not rely upon the diligence required to allow a payton lee unconscionable agreement to  scan and that issue was litigated in the johnson case was determined by the johnson court under circumstances that are pretty similar to this because here's the point in this case looking at the absolutely undisputed value of the marital state judge thurston decided that a maximum at a maximum kim got seventeen percent of the marital state him got no maintenance and he got eighty four point something percent of the marital state whatever the difference is my submission to your honor is that the amount of money on deposit from exhibits four and five to his deposition at the time of dissolution america was closer to three million and the court used the order number which understated the amount of money by about half of the other thing look at the financial statements and notice the difference so the trial court's finding of eleven million three hundred thousand really understates the value of the marital state by about a one million and a half but for purposes of this case the trial court says her getting what was seventeen and a half percent of its lower number what is on its face unconscionable here's the point no point has it ever been disputed on d any rational basis that she ever received more than the seventeen and a half percent  submitted there isn't a genuine issue of material fact as to any of that and the point that i think that your owners might want to take a look at it in this case is i want you to take a look at the johnson case would partially agree and disagree with your other st of all the st question i'm looking at the motion for summary judgment is what is the issue of fact if there is no issue of fact we go to the law what is the issue of fact there is no issue effect that has been defined by the appellant in this case because the primary issue the significant issue in this case what's the barrier the marital state on the the agreement is entered of itself on its face substantively unconscionable it's not going to stand because of diligence diligence is not going to preclude setting it aside in this case and i think the thing that we need to look at is the similarity of this case certainly to ours mine but also to callahan and johnson at the point in this case where the case was presented to the trial court was never advised of what was in the marital state what the value of the marital estate was that's the same thing as with ours from the trial court was never it by anything other than what the wife would be getting that the trial court had no circumstance under which it could have ever passed on the unconscious ability of the agreement as presented because the marital settlement agreement they documentation submitted to the trial court the testimony committed submitted to the trial court didn't advise the trial court of the relative distribution of the property it's the same thing as an orangeman the point of the matter is the circumstances of this case are such that in a situation where the record demonstrates that cam had an earning capacity of about ten dollars an hour compared to what the ten dollars eleven cents tax returns show that he had which was about a one million dollars a year under circumstances where cam gets far less than twenty percent of the marital estate and no income producing assets at all there simply is no circumstance where you can reasonably assert that that division is anything other than substantively unconscionable and all you have to do to confirm that is look at the facts of the argument case look at the facts of the callahan case look at the facts of the johnson case and what is significant in this situation is neither in the argument in the trial court nor in the brief nor his argument today as counsel ever addressed any of those three cases which are factually o in the in the r s mud case unconscionable agreements cannot be allowed to stand there is no genuine issue of fact in this case that the finding of ballyhoo of everything received by the responded in this case was less than two million dollars and that respondent had no earning capacity beyond ten dollars an hour and the substantive unconscionably is apparent from review the case law and that's what munt courts and it is of some significance that at no quite in this case has the appellate ever argued otherwise the point of the matter is diligence as the johnson courts say it is not inflexible and he cannot rely upon that to have this court to enforce what is on its face a substantively unconscionable agreement and let's be clear mr hardee can you tell me do you agree that this court you know when proceeding is a separate proceeding service that if this court affirms never have been an equitable distribution of the marital state because the marital settlement agreement the effect of the court's order was to set aside the marital settlement agreement this case will be tried for to determine what an equitable division of the marital state would be the court's order found by the agreement was unconscionable on its face under fourteen no one procedure for attacking the underlying judgment is beyond the normal appeal or a motion to reconsider or things that would happen within thirty days abbe asli there are there are things which ha found that it was so substantively unconscionable that under the authority of the johnson case the trial court the appropriate appropriately excuse the diligence require state can walk out of the marriage so badly that they waive an interest in the maryland state and then four days before the two year statute runs out what's what i would call buyer's remorse that is she now announced two years later she separated in time from the whatever relationship there was but do you think at the time she said i know what i'm doing i don't need court the party who filed the fourteen i want protection appeared in court he agreed to the proceedings he said that he understood it and all of that yet at the at the end when and the johnson court d is is directly employed because mr johnson clearly appeared in court without representation acknowledged all of the things that he says that kim acknowledged here and at the end of the day the court said it doesn't make any difference because this agreement is so one sided so unconscionable it cannot stand ok all right thank you very much mr armey thank you  r my general response is that mr harvey says that we never argued otherwise that these facts are undisputed and i don't know how to answer that except to refer to our brief and my previous argument which we have discussed many many facts which are in dispute let me just address in my brief time a being released from any present or future debt credit card debt health insurance other assets and then is to respond to his argument that there was the descent of to the wife was nineteen percent so there is a conflict right there in one place a seventeen percent in another place it's ninety percent in addition there it says it she got and if there's an inference summary judgment is not proper there's a fair inference from the record that she did receive something more than two million dollars how much we will know until there's a trial in this case  and this is in the appendix of page sixty eight where he says in paragraph four the total for all the other ships that is the total fair market value for the stock in all these dealership for two thousand and eleven would be two million two hundred and seventy eight thousand dollars two hundred and thirty four dollars there's a direct conflict between the valuation of one expert which was a little and they do not represent market value figures so again here is another conflict in the evidence so there are again there are multiple conflicts