it please the court counsel i am merely leahy and i represent the petitioner appellant in this case from what i heard this morning the issue of question being presented to you in this case is simple how the answer may not be simple but it least the question is simple i was sick and vacation days accrued by mr abel during his the fourth district appellate court said no the fourth district appellate court characterized these days as turn a chair of the wages again in contrast to the arguments i heard the smoothing there's a great deal of agreement between the parties we agree that this is a case of first impression in the state even though the marriage and dissolution of marriage act has been around for several years we agree that the standard of review is staying over all we agree as to the number of vacation days earned by mr a brawl during the marriage we agree to that number we agree to the number of sick days earned during the marriage and accrued and we also agree as to the value of those days the trial court in reviewing the five then added the remainder of the sick days and the vacation days value down there was no dispute as to the value took into effect the tax consequences and then divided those days in half the fourth district as i said reversed holding these were alternative wages and as i pointed out in honor it would be an asset for the estate to our divorce cases and it occurred to me if mr abel had been working for an employer that didn't provide for any vacation or sick days that you couldn't accrue that in other words if you had to take time off to go to the doctor you just to get paid and suppose even under those circumstances the husband puts aside opens a bank account a savings account his own name and puts in their money it's to provide for a vacation that savings account would be subject to division as marital property at the time of divorce supposing this trader was self employed and he opens a bank account in his own name and puts monies america every month to there is a situation where one of the spouses has a worker's compensation claim pending has a personal injury lost impending and in those cases is that speculative but it's me o you say yes now that's changed a little bit your honor at the end i believe at the end of governor ryan submitted station he offered a retirement in early retirement and i think when people  the amounts of money that people were drawing down to the second vacation that it can be related they've now put restrictions on how many vacations you can carry over and they've also i believe that you collect only one half of your sick days but the vast majority of mr stays on the payroll an extra month without having to work so that he does receive those moneys right if he doesn't use the that's correct so i'm saying for every day he uses  so if you one day a month say sick time you have twelve at the end of the year if you become sick in the following year you then can draw down on those a crew days and you would be paid even though you're not working but in a sense that's what troubled me when i was thinking about this over the weekend in a sense this is allowing the employer to determine what's marital property or not because  situation of the employer doesn't provide for any accrued debts no sick days no vacation days no personal days and you have the employer that is self employed and doesn't have that advantage but yet in those latter two cases when you try to provide for these contingencies that would be a marital property because you've been putting it in some kind of investment during a bank account and yet the be used to nonsense if i remember correctly that in the setting aside forty five days are not to be decided as marital property are not subject to division this marital property he didn't say them were marital property and looking back at the record i believe they were marital property but there's nothing that we choir is there to be an equal division of money or a property so if under the circumstances of the case the trial court said hey wait a minute there some health considerations in this case i'm willing to give the employee forty five sick days off the top and then divide the remainder is that which i do believe that i i believe that  doesn't have to be equal you know that the trial court can take circumstances into account i don't think it would have been abandoning some discretion if you had your way he had one hundred fourteen sick days and was terminally ill with lung cancer i believe the court the trial court would not of the thing is just discretion if you signed all those days to that spouse but no you're going to have a situation where the considerations aren't there take like you do in a pension and you divide that pension and put this much over here in her name and this much over here in his name the problem that i see and we talked about the three ways the states have treated this one reserves the division until the time of retirement but the employ of person could use up all those stories before he retires and i think if there are extenuating future as to what might happen to either one of the parties because i think this provides than the money for her to live off if she become seriously ill and i really as i tried to say my reply brief because mr moran talked much about the sick days would enable mr able to pay maintenance if you became sick when i think we have to keep in mind is that this is a purely legal question and cannot be based on the particular circumstances of this case because it's going to apply my whether or not this is marital property it's going to apply in every case both are employed and both have accrued days where one division of the cooperate but these were not on the fourth just six ruling these days do not go into the mix first came to the fide marital property according to the circumstances of the case i mean the standard of days but they put monies aside for a rainy day fund that would be marital property a bank accounts marital property and that would be subject to division after i understand your argument that it's all marital property i don't fully court to go back in and say hey wait a minute if we were giving mr abel fifteen thousand more dollars but he had i don't think the trial court could look then to adjust anything else any of the other property division of the day to go to a doctor's appointment you don't have to be actually physically sick to use those sick days and that was the problem i saw with the way some of the states have treated it that they do it at the end when the person can use a dollar and i think all of us have seen enough cases on appeal and read the record to realize that it can be out of spite sometimes some divorces so that wouldn't be available  and i think that by not finding that these days were property the fourth district then took it out of the context of any exception you know the dissolution  marriage act so there is a presumption that the property acquired during the marriage is marital and then it was the exceptions but by characterizing mieses alternative wages the appellate court took it out of the context of property and out of those provisions of the dissolution of marriage act as i said we believe that these days are analogous to deferred compensation to pension to stock options whether they're vested or vested whether the options can be valued or not and in this case there was no problem in valuing the days there was no problem in taking the tax consequences for the states and so we would ask that the mr chief justice may please the court mrs leahy for your graciousness and in this case and in matters past picking up in a place where mrs leahy started if you listen to the arguments this morning in the cases were presented the first one had issues of taxes hospitals doctors millions of dollars and file second case pharmaceutical companies doctors millions of dollars involved top of the news their case the banking industry a decision that's going to have wide ranging effects you get to this case on the docket and you see it's a dispute about vacation and sick days which were found to be valued at fifteen thousand eight hundred four dollars and eleven cents and you wonder where the importance is besides this being a case of first impression in this state mr able in this instance works for the state not only to tens of thousands of people just in this town alone work for that employer but across the state these employees are allowed to bank their vacation and sick days as well as employees in other professions in other areas therefore this court's decision is going to have an effect probably on millions and millions of dollars over the years to come concerning this issue i agree somewhat with mrs leahy that the issues in this case are pretty finally look at the appellate court's decision in this case where it found that these days vacation and sick days were all turn it or substitute wages that were not subject to being distributed in a dissolution of marriage proceeding under section five zero three of the dissolution act there was a question asked about how the trial court decided this issue in fact the trial court's decision is laid out in the court's the citizen and on page five they directly quote what happened in relation to the sick days states of the hundred fourteen sick days the respondent is awarded forty five of those days without those days being subject to division as marital property in other words the trial court said they were not marital property the trial court then valued the remaining days found after taxes that they would be worth a little more than fifteen thousand dollars put those into the marital pot decided that the marital pot should be divided on a fifty fifty basis gave mrs averil liquid assets which at the time of the judgment were worth fifteen thousand eight hundred four dollars and eleven cents and gave mr a roll all of the remaining days in this case were we would argue that fairness and equity come into that situation is that mrs abel received a benefit immediately upon the judgment in this case that was worth her fifteen thousand eight hundred dollars in cash in mr april situation he received an award of the second vacation days but the only way he could cash those out would be to retire or to resign his position there is no evidence in this case that indicated that he intended to do that at any time in the recent or in the in the time after the divorce judgment was entered in fact the evidence if you feel we should agree with you  and then take that into consideration in determining how to divide what the trial court does considers marital property and end up with the same result we would say no and that circumstance again because the benefits can't be cashed out until mr abrams retires he's not going to receive any more salary he's not going to be paid any more from his job when he takes these days the record shows that he's been diagnosed with prostate cancer so if he has to have an extended leave from work use all these days to do that he uses a month he doesn't receive an extra dime while mrs abel still gets the fifteen thousand eight hundred dollars in liquid assets and aso gets the benefit that her permanent maintenance in this case continues to be paid that's one of the things the appellate court in this case picked up on in said bed during the marriage these days are a safety net for the marital community because if the husband of the wife is sick they can continue to be paid while the marriage benefits from that payment they don't lose their job or their income they said the same benefit continues to accrue after the divorce and it's demonstrated in this case if mr able has to take an extended leave from work instead of having no income and being able to file a petition for modification and saying i can't pay mrs averil her permanent maintenance any longer he will continue to see receive a salary and she will continue to see receive her maintenance payments the court said the same thing for child support payments the same thing for educational payments that were ordered the same thing for marital debts that were carried over but say both parties names were still on the mortgage to the former marital residence that was a because mr abel could find himself in the same situation where he would receive any additional income by the time he retires he could we see nothing if all of his days are used up or if the law changes or if the state runs out of money and and can't pay those days on the day that he retires and therefore it brings in the speculative argument that both of the indiana and the maryland courts talked about they said how do we know if the individual is not going to be sick how do we know that the law is not going to change their contracts or aren't going to change how do we know that at retirement this individual is still going to have those days banked up and be able to pay for them there are other species of me out on the hybrid you heard me have ms leahy whether she was looking for a bright line rule and i  you're looking for the other end of that rule but i note that one of your comments earlier i'm was you know your history was not close to retirement so my question is really same for you if we ha situation which i know is not the situation that the days were guaranteed or or john was close to retirement in those type of situations i mean should the bright one will be deviated from and should those monies be included in those days included in the murder mystery there are actually two of the cases cited by mrs leahy on her side but that was exactly the the situation in the florida case the money had already been paid out and it had been if you will transmuted into cash if it back time the court looked at the situation you could deviate from the bright line test because he has just passed it spendable there is no speculation involved whatsoever in what they have is going to be worth and how much is going to be there about closed the river again there's a situation that unless it's retirements the next day an individual could walk out of  court house get hit by a bus be laid up and would lose all of those days now in fairness and with my duty to to say and to provide all of the case law one of the states looked at this issue and that was new mexico instead well we're not going to allow trial courts to value these have the time of the dissolution will do the reserved jurisdiction approach wait till such time as the individual retires if any money is left at that time we can split it then and even and back case it said there was a i forget if it was fifty fifty or sixty forty split at the time of retirement that argument then this is late he would have against that would be that the worker would be in control of those dates and could use them up in small increments over time that's why we don't think in this case it would be appropriate based on these facts make a that the appellate court in this case feeds off that the two earlier cases the n e n in the maryland case but these are not chosen action it's not a piece of property what it is is substitute wages in a case like this a state worker earns six days whether they're the best employee that the state ever had or the worst employee same thing with vacation days the only requirement to earn the vacation days is length of service it's not an award it's not a bonus like deferred compensation would be that's how the court in in maryland differentiated the two in said deferred compensation not invested noncontributory pensions in stock options which by the way  dress pacifically by our legislature in the statute but those are things that are bonuses those are awards in this case all we're doing is giving mr abel an opportunity to be sick and continue to earn its salary or to go on vacation continue to earn his salary he doesn't earn anything further from those things again until the day that he retires bat's when the speculation goes away that's when they could be valued but in this instance based on to the benefits we do survive your clients i think it would be handled the same as if you resigned that they do survive and that they they do become an asset that would be payable to your estate if you have them left there have to be lots of state employees that never have any days left because they take their sick days they take their vacation days during the period of time that they're allotted to do that they don't bang down in this case what mr able has done is he is for baird he's gone into work when he was sick he hasn't taken vacation when it was available to him as found by the appellate court in this situation mrs averil is going to continue to benefit from that because she will continue to receive her permanent maintenance payments therefore in this case under the statutory framework that is our dissolution of marriage act these are not property under five zero three their wages wages can't be split under five zero three under five  maintenance the statute says yes they can be split as far as maintenance is concerned maintenance can be paid from income or from property if you look under five o five for child support child support comes from income wages it can be split there it's required to be split there but it is not property and in this case we believe that the appellate court made the correct decision we would ask this case in maryland dealt with that specific issue and it had a statute a property statute that was very similar to ours in that case the maryland court said that even if the definition of property in the state could be expansive enough to cover the issue the two kinds of days sick and vacation days that that doesn't require that they be contained under the statu because of the personal intangible and speculative nature and again you go back to all the things that make these things hired to value value a pension is easy you have a pension plan you have that actuarial tables you have governments number as fire as the interest rate you plug goes into a little computer program called plan it spits out a number in this case what the indiana court and the maryland court says is that you can't spit out that number in this case because you don't know what that and numbers are going to be there are just too many variables in this situation you don't know if those days are going to be used up you don't know if the law's going to be changed you don't know if contracts are going to be changed you don't know therefore in this instance we would ask that the court follow those same precedents find requesting but i think twice during your argument you almost got to the point of why you don't think it should be divided if it is marital property should be divided at the time of re that sure again if you if you look at the decisions from indiana and maryland that they draw a bright line test they say it's not property it's not marital it doesn't get split are there are alaska being one of them though in alaska you can't tell from reading their decision whether they valued it at the time of the dissolution or did the reserved jurisdiction approach and waited until the time that the worker actually retired and i don't know if i answered your question again but it's a pretty bright line test and it said this property just is not in the nature not yet i misspoke these these days are not in the nature of property they're substitute wages substitute wages are never split up in the property section of a divorce and that would be exactly true what we would do in illinois wages have have no bearing on on property they're not split they're they're split in the maintenance section they're split in the child support section but not in the property section therefore in this case we would argue that it would be inappropriate in this case to include them at all and under the bright line tests that were in the court at that in this case they wouldn't qualify and therefore should not be considered in any manner in relation to property thank you thank you your hon honor on page twenty six of our brief following through to twenty eight we cite numerous decisions of other states that have held these days our marital property subject to division at the time of dissolution i would like to suggest one thing and that is that i don't think this chord should allow this decision to rest on any particular circumstance of this case because this decision is going to apply to every divorce case and two of the individual circumstances mr able to help mrs averil had serious health problems to let back drive the decision would be a mistake because you're going to have the case in which there are no accrued days because neither spouse his employer has provided for that but they've saved him put aside for a vacation and they're saving and putting aside in case one of them gets sick that's going to be divided as marital property you have a circumstance where the self employed has  took the tax circumstances into consideration when he divided them now it seems to me that pandora's box would be opened up if tiny drove the decision as to whether or not these days were marital property is it if you're one month close to retirement it's marital he can do that iran and that's a separate issue but she has then half of these days to pay for her to use to compensate for that take the situation where at the time of the divorce there's no illness whatsoever then the spouse with the accrued days is getting a windfall if he does that's correct but he's got them to use which means that he can extend this period i've been playing and receiving money there was one of the things that mr moran said that i did want to clarify he said that mr rader will get the status of the law doesn't change i submit to you that days to the point of the change of the law are best to property rights and the student come out but i believe that such a change could only be perspective and not retroactive because i do believe these are vested property right hold that their marital property laws far more in favor of that and more well reasoned and then let the trial court decide and divide that property depending on the circumstances in each case seems to me unfair bad it is the state of illinois in a sense that is key turning whether or not these states are marital property subject to division and to allow the employer says i'm not going to give any accrued days to anybody and so that couple puts money away in a savings account and as a result of that employers action it's marital property that savings account subject again this decision i agree with mr ryan is going to have an impact on every divorce case whether or not there's a crew days if their crew days in the fourth district appellate court decision demonstratable gets a benefit and so do all the other employees that have accrued days if the employer doesn't provide for a crew days or if the person is self employed whatever they put aside to cover vacation and sick days is subject to division that the trial court deal with the different circumstances in each case and to make the equitable division of the property that property should include these days they can be valued they were valued tax consequences were taken into effect it was the correct decision of the trial court so i ask that you reverse the fourth district appellate court all these days are marital property subject to division and then allow the trial court to deal with the circumstances in each case to make an equitable division of the marital property as to the argument about maintenance all the circumstances that the trial court mistake into consideration that statute does not list whether or not there are crude vacation or sick days so we ask that you reverse the fourth district appellate court and allow the trial courts to make the equitable division of marital property