but generally we are looking at two major items number one is this issue of maintenance and space and the second is the issue of how the port handled a condominium located like those are concerned so i'm going to handle first of all the issue of the maintenance because i think that might be even more difficult one for support i think the issue of the condominium may be a little straight forward and also i think the court kind of confused it i think it's a very it's a little easier to for this court to to rule on and that issue and find that the court erred but the maintenance argument is very difficult and i want to start with a little bit of facts now i know you've read the briefs i know that you know some of this but i just want to briefly review some of that and that is the parties were married in one thousand nine hundred one they were divorced in twenty twelve so they had a twenty one year marriage there is no dispute that throughout that marriage my client was the primary breadwinner up until just this marriage was dissolving there is no dispute that mrs bennett he was a stay at home mom for sixteen years all that is true however at the time of the divorce in june of two thousand and twelve mr bedding he was unemployed he had become employed full time as a marketing specialist at market me mortgage services and so they were in quite a different situation than they had been during the marriage and i know that how they got there is a primary issue in this case and so how they got there really was my client had been employed at olympus and he was a salaried employee boy he was working in a specific area of olympus with medical equipment there was a tsunami that tsunami knocked out everything he was selling and basically was the end of his department now he could have quit then he could have gone on unemployment he chose to stay with the linpus and move into a completely new area that he was unfamiliar with with regard to that new area that he was unfamiliar with he was trying to learn the ropes and all of this was occurring at the exact same time that his marriage was undergoing a breakdown he had a son who was injured in an accident and quite frankly he had some difficulties adjusting to those things the marriage breakdown was very difficult he took some personal time off which is required in petitioner's exhibit seven  and then he came back and was trying to do this new job additionally and there's no question about this he's an alcoholic is an alcoholic who also suffers from depression the testimony was that he had been in rehab three times from the date of the divorce until the date of the final hearing at the date of the final hearing his the rehab that he had taken had taken he's been clean and sober great for him but there was a period of time where he's truly struggled with both alcoholism and the depression in terms of where he was in his line and with regard to that he did lose his job it only because he was fired and counsel of his mark and attached to his brief a little memorandum that talks about that being terminated but if you read between the lines of that on the front page it talks about there being a corporate shake up and then if you read into the latter party talks about him adjusting from one one portion of olympus to another in the adjustment that he's making there's no dispute with his alcoholism with his depression with him trying to learn a new job he didn't do a very good job and he didn't get fired that is that's out there the problem is is that how the trial court took that information and what the trial court did with at the time of the hearing my client was unemployed granted and counsel has talked about the fact that he made over two hundred thousand dollars one year that another year he made one hundred fifty thousand dollars but basically starting in two thousand and eleven and moving forward his income had been significantly reduced i'm counting on his breed lines out the income through two thousand and eleven but in two thousand and twelve that income dropped to forty seven thousand two hundred seventy five in two thousand and thirteen as income was nineteen thousand dollars and his testimony in two thousand and fourteen when he finally of taman job and had that job it's his job was thirty thousand dollars a year now and we did file a motion to reconsider that motion was denied there were some surprises with regard to that we had but the court was going to give us an opportunity to argue that we received the court's opinion literally the day we were going in for a hearing the day we went in for the hearing there was additional testimony about some debts and those were distributed there is no appeal on the debt we have no issue with regard to that but i want to support for a loop at what where we were the day that the court made its decision mr bennett he at the time was unemployed but then subsequently found employment at thirty thousand dollars a year he was working on a family a farm manager with regard to that he was provided with a condominium in which to live so he had some grants paid as well so that job was pretty good under the circumstances in terms of his earnings and having a place to live and having some stability and foundation underneath of him however mrs bennett he was making thirty seven thousand dollars here but indicated well i'm going to set maintenance at two thousand dollars and the court referenced the fact that my client  testimony said look i think i'm going to make somewhere between fifty and a hundred thousand dollars and i submit to you that that was my client's testimony but he's a salesman in piece mr optimistic the reality of it is he never did and he still hasn't and we sit here in a situation where he's ordered to pay a sensually eighty percent of his income eighty percent is gross and towards the maintenance and really has no way to recover and so what we're doing here is really hoping to give him some and with regard to this the court had other options other than the court could have said set maintenance reserve maintenance completely the court could have set maintenance at a much much lower figure and then ordered him to find employment report as he often as a court would often do it with the child support case what are you going to look for or and point but the court and i'll submit if you look that we don't have a transcript of the original hearing but we do have a transcript of that motion to reconsider or shabak hearing and with regard to that i think even just the tenor of the court's comments for it's my client that time can be this observed and with regard to that the court indicated that is out of holism was self and where he was i wrote it down self inflicted his situation was self inflicted that he chose to disable himself he threatened that he was standing in the shadow of jail and so with regard to that and it set forth in my argument but number one with regard to this maintenance the maintenance is just really excessive under the circumstances my client has no way to get out from underneath of it my client has no ability to really pay and meet an of his own needs compare that to his wife granted we have no dispute that had he been working at olympus making one hundred thousand dollars he would have happily paid the maintenance or by the court but he wasn't she was in a situation where she was paying into a for a one k she had been in bits including insurance and was able to pay off some debt between the time of the original hearing in the hearing and the final motion to reconsider which the court allowed argument on some debt and she indicated that that in that timeframe from march to november she had paid off in one thousand nine hundred dollar credit card that so what we have here is my client who has essentially been unemployed since june of two thousand and twelve he finds some employment which is what the court ordered him to do find some employment or face jail time so he did but that situation is not the situation where he's making the hundred thousand dollars or more that this court has to scribed him and in fact i did the math under the new maintenance statute and if you assume christine and it's making thirty seven thousand now if you assume she's going to make a total of forty thousand dollars of their combined income that would require mr bennett he to make one hundred fifteen thousand dollars a year and that just doesn't seem that is not reasonable it is not a situation where he can make that and so every single day that passes he gets further and further and further behind with no hope of ever getting out of debt that wasn't that exacerbated by the fact that the then the court when we came in in november on the motion to reassert to take new evidence with regard to that again i thought it was motion to reconsider but the court of ruled on that three hundred fifty five dollars and some odd sense every single day in the kind of court made its ruling for the time the bill was to be paid for him to make that payment and there was just no capacity to do that so the reality of it here is that what we're asking for is some relief so that he has some hope do we say he never has to pay any maintenance no would be acceptable to him to have some sort of relief that says you have to look for employment or pay five hundred dollars a month maintenance that would all be fine i didn't cite it in my brief but it's very similar there's a third district case involving child support called think we use it in child support cases and in that case the father went on a strike and the court suspended it but said as soon as you come back you're going to hold this back child support you don't you won't be in contempt won't be so there are options that the court have taken regarding this but simply order him to pay eighty percent of his then end or is there come in order to meet these requirements of the court simply puts him in a situation where there is no hope and there is no way to get out and then coming out and saying you have to pay sixteen thousand dollars in this very short time frame certainly put him in a situation where he was unable to meet those expenses the court found him in contempt specifically threatened him with jail if we came back in january in the meantime we took to show cause and the sixty of the court distorted the sixteen thousand dollars paid but the sixteen thousand dollars would represent the eight months from march until november where the two thousand dollars a month payment was to have been made and my client was unemployed for most of that time and also not receiving in an onion any unemployment during that time but then became employed towards the end of that and that's where the twenty five hundred dollars a month came from was he was employed in late fall of twenty  fourteen with regard to that so that the sixteen thousand dollars represents what my client did not pay from march until november of two thousand and fourteen when he was unemployed and for most of that time underemployed for a very short period of that time and receiving no unemployment benefits because his unemployment benefits had run out of the prior year there was the testimony that to further regarding  regard to that i don't recall the testimony directly but my only understanding of it is during that time frame my client was depressed he was an alcoholic he was dealing with a lot of issues his making sure that he was on line and in fact that there was a dispute later on about whether or not he should have had any sort of internet connection if he testified i can't look for a job without the internet i've got to have the internet that's how these people look for jobs that this is he ho fully even as we secure finding a better job he is but he's got to get out from underneath of this so that he can function and have some income where he can meet his needs with regard to that testimony of all never work again and  i'm i'm here to screw you i'm sorry but that's a sense of what he said are that's what's in the bystanders report again i think he was in a period of depression and an alcoholic at that he's still an alcoholic but a recovering alcoholic so with regard to that but he had significant testimony about the fact that i switched jobs at olympus so that i could maintain my employment i kept looking for employment there was the situation with  to simply be where he was responding to that the fact that that christine bennett he testified to that and he was responding to that he had rather than came in and said well you're just making excuses you're making excuses when in fact he was trying to show look i'm hung in there i did the best i could under some very trying circumstances with regard to these numerous issues i do believe alcoholism and depression are real diseases there is no dispute that he did suffer from these issues that has never been called into question but i think the courts dismissal of those as being self inflicted and my client choosing to disable himself doesn't give really rise or or gives this court an idea of where the trial court was and that's part of our argument too in our brief is that he was really punishing him for some of these things when in fact i don't think the imputation of income was appropriate i do think the unemployed and in terms of paying other bills he was basically borrowing from his father to pay those bills there is testimony in the bystanders report that i believe he owed forty three thousand dollars to his father in his financial affairs  affidavit which was then submitted in november that that had three had gone to one hundred five so there were a significant amount of of him borrowing from peter to pay everybody else and with regard to that no there had been any payments in that eight month period that is true that michael provide the evidence that the court then used to oh one hundred thousand dollars per year and come i don't know that he testified that he believed he was going to make it somewhere between fifty and a hundred thousand he that was his testimony that the court then said well i'm going to use the upper end of this and in fact went to i think one hundred of my math this practice hundred fifteen thousand but yet he even testified to that and i'm sorry i was going to have to be put that in some sort of context that if this happens then i might be able to leave the one hundred he's basically saying i want to get a salesman job i am looking for a salesman still and that was in the context of what he had been doing to try to find that employment about hiring a headhunter getting his resume out talking to people networking going on line doing in these various attempts to find this employment and i would submit your out your hon is always like this how far is someone going to go to slice off their nose to spite their face and the reality of it is if he could make that hundred fifteen thousand dollars if he could make the amount of money that's been imputed to him the two thousand dollars would not be a problem the problem his he's not making yet nor do i think that that is likely anytime soon and i think that there are other very just ways that are fairy very fair to christine  that this court could have chosen in terms of saying you can update this for a period of time you could lower the amount of maintenance and ordered him to find employment report back to the court on a regular basis as to those attempts but basically he is in a s all he knows how to do really is selfish and in a salesman style when you're then starting out at the beginning you're starting out where you're covering a territory and so even when he does that we've got have a little bit of a problem i see in my life i just want to cover those ozark  condo very quickly it is covered in my very however the ozark condo i never understood exactly what the rationale behind the court was christening benefit he said it was a gift if it was a gift that's easy because plus father who is the one who was supposedly having the don't even ten indicated there was no don't it different and specifically with regard to her so if you follow that rationale the judge says look we've got some conflicting testimony so and the judge rejected that said i don't think it's a gift i think it was purchased but nobody ever paid for it because that that's going to be forgiven and some point well again i don't think that mr belton mr bennett testified he forgive that i think he testified look i'm never going to get paid on all this money i want my son it's very unlikely that i'm ever going to get any sort of payment back but the reality of it is is that if you follow the court's rationale which is it was purchased during the marriage and therefore marital then there had to be some money changing hands and no money changed hands no one there was testimony below or we have exhibits seven through seven f or something showing that every payment was made by the elder mr bennett he for everything for taxes for insurance for both all of that was paid by him so there was no marital monies put into this at all and the judge says well now he's going to forgive this debt well then that is a gift and moreover in the judge's order he says this is the sort of thing that the  touch but look you but that doesn't mean that it becomes marital property number one number two i believe she completely failed in her proof at all there's no document showing so much as one receipt for eight area r purchased for the place there's nothing indicating in terms of what was done what the improvement was to the property anybody that isn't to prove that it's not merely the burden to prove it is not a marital property which marital property which i believe having a deed showing her she was never on it certainly goes to that i mean i think that ends that i mean i don't think you can say i can hold for a long time that i owned a real was in fact a stay at home mother for sixteen years three fourths of the marriage number two that the parties were married for twenty five years that michael had been the breadwinner during the marriage and earned on average two hundred twenty five thousand dollars per year for the five years prior to the divorce the court also found that christina's reasonable needs were about two thousand dollars per month and i think that's primarily where the mate and some out comes from the court also the certified bystanders report that he was first to sleep going to get fired so he wouldn't have to pay maintenance his statement that he was never going to work again in addition to that effect if he had been terminated from employment  hadn't offered any evidence whatsoever as far as what efforts he had made from the date of his terminations up until the time that we came on to hearing on all the main issues as far as what he has done so for the most part these the record would reflect that he had done much of anything during those two years to attempt a fine point the court specifically found the actor michael jace the poster child for bad faith and also imputing had income relied upon  statements by michael that he could go out and taint employment almost immediately at a rate of fifty to a thousand dollars per year also the at christina had earned thirty seven thousand to forty thousand dollars per  year and had now to ever earned anything more than they had during the course of the marriage they the court also gave a little bit away to the fact the actor's phina i was also providing medical insurance for one of the party struck children and vehicle insurance for both of the children so think that the the record or the evidence supported this argument the at is terminations was as a result of this tsunami you know for the most part trial court did not find that to be a credible excuse for his was was the pay or attempting to evade the support obligation again based on the statements that terminations from a point with the same month and the fact that he had done nothing for two years following determination and just so there's no confusion the order entered on may first two thousand and fourteen required michael to pay two thousand dollars per month maintenance in when the case actually came on for a hearing on the contempt attention and november of two thousand fourteen about six months later mr bennett he had not paid anything he had not made any attempt whatsoever he hadn't paid one dollar towards the support obligation in addition to the idea that method that funds had been spent on other things such as the cations gifts entertainment and internet subscription he had also testified that he did have income at that point in time and that he had minimal living expenses based on the fact the id was living on the property primarily owned i think by his father so due to the fact that he had paid nothing during that six month period of time to burn was on michael to prove that his but that there was no debt associated with it and that was based upon both michael's testimony and his father at bennett he's testimony that essentially that initially a sale or a transaction where the initial agreement was they  d money was going to be paid for this condominium but then asked time went by both michael and the father admitted that it was never going to be repaid both of their testimony was  because neither the lender or the land be expected repayment and there was not going to be so that's how we got from you know whether it's a gift or whether or not it was a sale you  that christina testified the at she had thought maybe it was worth twenty five thousand dollars however that testimony wasn't based off of any kind of expert knowledge i think the court took the most the testimony i think it was a valid bennett he was the abject paid thirty five thousand for his scare off and so there you have is obviously the most competent testimony evidence on the topic of what was the other a testimony in march when he came back in november he testified to it they were going to sell the condo in the proceeds going to be paid to his father to repay him because the debt had never been paid the issue is that if if the father is going to forgive the debt which is what judge reiner found then that in and of itself is a gift and the father testified i had no donative intent to include christine i didn't put her name on it her name was never put on it that put my both my sons names my i'm ever going to repay him but the bottom line is if that is forgiven then that in and of itself is a non marital gift to my client and then when the court goes on in its ruling to say well he can take care of this when he takes care of his estate planning he can because it's unfair that one son had paid and michael had not paid it just further strengthens that argument that this was a gift only to michael if in fact there was going to be loan forgiveness that would have been a debt and the bother testified again the person with the donor to intend payment testified there was no don't need to intend not to take you back to the first with the law school but to have a gift you have to have that done it intent and delivery in this case we had neither because the delivery would have to be a deed in christine's name and that was never done her going down there and enjoying it doesn't make it marital property and doesn't make it a gift to her with regard just very briefly time again that testimony in november was that the condo was to be sold in the father paid from the proceeds council says you cannot reverse unless there's an abuse of discretion i respectfully submit that eighty percent of your payment for maintenance and where one party end up with ninety one percent of the total combined income of the other party ends up with nine percent of the total combined income probably borders on abuse of discretion the bifurcated judge an issue where he says he lost his job the exact same month that the  d judgment was entered doesn't really make any sense because of course in is brief he attaches some documentation back in april where they're talking to him about this issue however the loss of an employment the same week bifurcated judgment was agreed to my plan didn't think it was that big of a deal he agreed to bifurcate judgment was the sport is a world where you can only bifurcate upon a finding of appropriate circumstances or agreement my friend said sure let's go ahead and get the divorce he also indicates that my client put no testimony about what he was doing in the bystanders report paragraphs twenty three and thirty three it talks about the testimony about what my client did to number one stay employer number two become reemployed so with regard to that  there's no evidence he turned down any jobs with regard to that there was some testimony about only got to take vacations and give gifts that vacation if you look at the transcript his son had returned from afghanistan he spent approximately hundred fifty dollars to visit his son on the east coast of that he could see his son when he returned from afghanistan and he did say that however it wasn't like he was living the life of riley he did have restricted he talked about the fact he was driving a two thousand and five vehicle he had dental work he couldn't get down he couldn't have health insurance that the health insurance that he purchased had such a high deductible that it was essentially just for emergencies so basically that in his position living in a situation basically in his father's condominium and working as a farm manager versus someone who's making more money has benefits has a four one k that she continues to pay into it does point to the idea that the maintenance issue may have been improperly decided by the trial court so i think