thank you good morning thank you for the opportunity to appear before you today in july of two thousand and nineteen the bushes and their attorneys appeared before the trial court to conduct a hearing regarding all remaining issues as is not uncommon they spent their time negotiating their issues and chose to settle their case rather than proceeding to trial mr bush's attorney read on to the record the terms of the pardons agreement the oral recitation included among other things an agreement to divide mr g bush's retirement bided approximately six hundred thousand dollars equally between the parties to divide equally proceeds from the sale of the marital residence and to divide equally the marital portion of missions to  service account after the proof up the court made some admonitions to the parties asked a few questions and at one point after requesting more details regarding the sale of the parties mirror residents said and i again i'm not trying to cause any trouble i just want to make sure everything is clear i don't anticipate any trouble between the two of you but it's always those cases where i don't intend to subpoena trouble but trouble arise practice of family law provides an excellent analysis of why our legislature likely determined this provision was necessary it portion of that analysis is worth quoting again today because oral settlement agreements can cause complications that are not is frequently part of written settlement agreements an attorney should carefully consider whether submitting an oral agreement to the court for approval in a dissolution proof is the best course even if good cause  terms in the written judgment producing inconsistency between the record and the judgement the analysis goes on to say the potential for appeal is high prior to the two thousand and sixteen amendment are appellate courts were to the case at hand in that case the parties agreed and orally recited to the court that they would be dividing a retirement account equally between the parties however between the proffer to the court and the preparation of the documents to follow there was a disagreement as to how the tax consequences involving the distribution of that pension account would be handled one party believed the parties would share those tax consequences the other party believe that they would be born exclusively by the participant within the one spouse before a decree has been entered now it's a lot of bull but the child judge in our case was attempting to conclude matters for these parties however it appears that allowing the prove it was more of a means to lock them into their agreement it was an abuse to allow the bushes to play its place their agreement burble be on the record in the absence of a written agreement and without good cause shown misdiagnose it would be difficult to guess what good cause would have been in this that those agreements be placed in in writing and tendered to court in written form i don't believe that's something the statute envisions i think this is a protection upon parties and a protection upon our courts to ensure that full comprehensive and fully negotiated agreements are tendered the court reverses these somewhat general and more vague oral proof i think the statute would indicate that the parties could waive that requirement and the court could accept that waiver if the legislature determined otherwise and it is clear that legislature said must be in writing must that is a mandate for courts and that's a mandate for litigants unless good cause can be shown i don't think good cause is awaiting the mandate i think good cause might be although it's not defined within the statute something along the lines of it terminally ill that it get may need to have resolution of the distribution of an estate before an appen met or a pregnant litigant and be opposing party may wish to have issues resolved quickly in a judgment entered before the birth of a child who's not biologically related to both parties and we're not want to be presumed to be a child of the mayor is marriage in this case it was the judge's job to make sure that procedure was followed according to the law and i don't believe either party could waive that  also indicate that the nd issue even if we believe there were the ability of the parties to get past the five o two a provision the nd error occurred when the trial court accepted written documents that did not conform with the parties decided agreement the oral recitation of the party's agreement regarding the service pension was simply and i quote directly out of the transcript mr jeb bush would receive one half of the merrill portion of mr bush's state of illinois pension pursuant to polgar that's it that's all that was set many critical terms necessary to fully and completely allocate this asset were never tendered to the court for example how the parties defined marital portion whether or not permissive credits would be included or excluded from the marital portion whether or not cost of living increases and adjustments would be allowed what death procedures would be used nothing was said regarding the specifics of the nor was a calculation order directs none of these critical and necessary terms were provided to the court and so as often is the case when drafting in the drafting process occurred it was determined more terms were needed to fin natter however when the trial judge accepted a judgment of dissolution of marriage and companion documents prepared by the petitioners counsel which included terms and communion orders that were never part of the parties initial agreement that was an abuse of discretion the judgment of dissolution of marriage that was entered by the court and includes language responded to the court specifically in paragraph eight on page not however  terms that were important but that was done after the fact and it was done over the respondents objection because the respondent indicated to the court in response to the motion to enforce the oral agreement he didn't agree with how those at it terms were judgment of dissolution of marriage which included terms not part of the parties written marital settlement agreement unmet case or is even assigned marital settlement agreement in the absence of waves consent was air the trial court could not modify nor add terms to the parties agreement even if the court will use those terms make the agreement conform to the law so in this case once the trial court was presented final documents that did not comport with the record in were objected to by one party the judge should have either sent these parties back to the negotiating table to attempt to arrive at a complete and comprehensive written agreement regarding the allocation of their estate as well as an agreed upon pool drawn calculation order no isn't that a problem no because respondents demonstrative exhibit eight doesn't tell us anything about permissive credits the inclusion or exclusion of those credits it doesn't talk about the months it's me the months that are involved in it was prepared for a purpose completely separate from the preparation of a quote around calculation or so that respondents demonstrative day for demonstrative exhibit and doesn't provide any of the details that would allow us to know the specifics as to the terms of what's necessary to complete a quilt row and a calculation order  we divide in illinois pension so why the petitioner states that that was relied upon and why the trial court may or may not have relied upon it and i'm not sure the trout were bit is unclear particularly when the figures that were used by the petitioner within the calculation order amoco group don't even match what is in this demonstrative exhibit the months for the denominator and the months for the numerator do not match th and so i don't i don't think there was i mean there is no reason to object to this because if the petitioner wanted to bring this to the court's attention at the motion of a cave hearing it was a demonstrably exhibit that was prepared on a pretrial basis never tendered to the court for any purpose until the december th motion eighty eight and quite frankly respondent didn't have an issue with the court seen it but it's not very relevant to what issues were before the court at that time it is our position and so we believe that when the trial court denied larry's motion to rectify these problems to rectify the fact that an oral recitation was accepted without a written document contravention of the act to rectify the nd issue that the court accepted documents that did not conform with the oral recitation the trial court also abused its discretion it st of all we never should have gotten to a human lateral mistake there's clearly been a mistake here it's the same mistake the lake in court was faced with both of these parties evidently had different understanding of how to define marital portion and what they didn't do is delve into those details evidently with each other and specifically not with the trial court when they re sided a very general one sentence phrase in regard to how to divide this very important asset one party thought permissive credits would be considered marital and included the other party did not how any reading of the pleadings and the record in this case could indicate there wasn't a mistake is difficult to understand secondly the court ear when it went past that and sent even if there were a mistake essentially these credits aren't merit they wouldn't be visible so the trial court blamed larry for not bringing to the trial court's attention at the proof that permissive credit should be included evidence presented showing these credits were purchased twelve years after the party is married with marital funds from a joint marital bank account the court states in the december th two thousand and nineteen order that portions of the order also contradicts law a standing case not dealing with the division of retirement assets is difficult to understand how the trial court to disregard the illinois supreme court's decision is a movie zero which addresses nearly the identical issue in case where in any military member whose service completely predated the marriage by twenty years was found to have purchased credits to allow for retirement marital funds during personal days from before the marriage or make ation days from before the marriage were part of the permissive service the record shows that it checked with  thousand three hundred and ninety three dollars sixty eight cents to the state retirement system issued by a large bush in married to push on a joint account there was no evidence presented that there were any non marital credit that were used and i'd suggest if there were i mean if the court had had an evidentiary hearing on this matter at a trial the parties have been unable to settle what was included and what wasn't included permissive credits there would be and i'm not sure how the presumption could be overcome when it's clear that these credits were purchased with cash used by the parties in their joint account i mean but how it's how does and i didn't was that checker that that transaction show that that was the only thing that was needed to to get all these permissive credits well it states that you have that there's an amount that were to be paid to the state retirement system in the amount of eight thousand six hundred and thirty nine dollars i believe under the i r s section for fifteen limitations you can only pay seven thousand three hundred and ninety three dollars of the require contributions and that payment has to be risky for calculating the retirement anybody that check was issued it was issued out of a joint account it was issued with joint funds and it was issued in the amount of seven substantial detriment to mr g bush you shared his retirement equally with his ex wife but is now receiving almost half of what he should have received and so all of us i'm sure would agree that resolving cases by settlement is certainly paramount to the best interest of most parties and to the courts and it's it's you know heavy but those are statute even promotes amicable settlement but there are rules in place for how those settlements are to be handled those rules were enacted for a reason they were enacted to avoid the potential troubles that were of concern even to this trial judge troubles which unfortunately came to fruition in this case as a result of not following those rules and so for those situation which were abuse of discretion without a clear record in this case we don't believe that they can meet their standard to demonstrate that there has been abuse of discretion well it's pretty good it's pretty clear there's been an abuse of the statute well the use discretion in this case would be for us to decide but the statutes pretty clear it isn't but we believe the statute been complied with the statute says that it does can't see where there would be a basis for finding that were used as discretion but the reality is as was touched on a bit earlier respondents counsel and responded himself participated in this a their amended motion to vacate cites that specific statute says here there was no signed agreement by the parties petition or by a motion to force a judgment that never occurred there was no evidence you're hearing the following day the record in page three but the seven and there was no written objection to the use of the last to exhibit a prior to the hearing after it was included with our response to their motion of had there not been good cause with court approval and that issue was squarely before judge asher at the hearing on december th she did not grant the motion of a case so it's our position that the court in the stand your requires that in the determination be made prior to proceeding to an oral prove up so that should have been on july th counsel let me ask a question obviously a court reporter was there when the settlement agreement was read and at the record where is the report or at the rest of these proceedings how do you do it in saying  it's not known until the last minute then typically the parties are given the option proceeding without a court order scheduling in for a time when that order would be available but the parties always have the opportunity to bring in their own court question why given the fact that you knew both sides knew right away that there was a matter of contention with you call it the respondent trying to renegotiate our you call it the respondent saying stuff was left out of the oral settlement agreement that was known and when late july early august it was very early august ok why didn't the parties go back into the judge right away with a court reporter and straighten it out before we get this far down the pike will judge you know our guys knew that this was going to be a problem we believe that it was a problem where there sh been one we believe that there was a meeting of the lines and for there to be any suggestion that the respondent had different numbers in mind at the time of the settlement the record belies such accounts and then it moved on to this issue a few weeks later i believe it was mid mid august so two or three or four weeks or so about three weeks after we appeared before judge after  eight and there there indication was well after further reflection we think we made a mistake so we proposed to fix that mistake by changing the numbers that wasn't i wasn't sixty five percent which would leave my client with just a little over forty percent of her portion being non marital compared to the sixty eight point five percent that everybody had in mind on yes that is in the report of proceedings i believe everything that they've submitted in their appendix is consistent with documents that appear in the record  clear whether those should be considered marital or not aware that it depends on a variety of factors that was martin hearing then was held on december th let me stop there him it's not clear trying to augment the marital portion beyond what was agreed upon on july thirty even though we believe that there was a meeting of the lines on july th judge after nonetheless having them an evidentiary hearing on december th and gave them every opportunity to get into the merits of their arguments and the substance of everything that they had to say and following that hearing she entered an order indicating unconscionable or even though that her was is not contained within an order i believe that's the route that she went down to determine whether you know holding mr j bush to the agreement that had been reached was unconscionable and clearly her decision is written in a way to indicate that she found it's not unconscionable that he would be bound by the agreement that he reached well if there was a mistake made in preparing  but at the end of the day we don't know necessarily what arguments were made to judge asher on december th we don't know what sort of insi and we pointed out in our brief the respondent did not argue on appeal that a unilateral mistake on his part of bird there amended reply brief in the case that he addressed unilateral specify that there was a lateral a stay instead it was written in pretty broad terms which required us to decide were there potential arguments and construct proper responses to their reference unilaterally state so we believe that that issue is not properly before the court the only issue is whether there was a mutual estate we don't believe there was a huge mistake we don't believe that the record believe that the legislature intended for that to be done after it's to be done at the time and this keyes is a perfect example as are the predecessor cases that had been his best work in the breeze as to why we want written agreements with heart we get sloppy when we read things on the record we leave out details we think about things we weren't necessarily thinking about we don't hold people to their pretrial memorandum when individuals place the specific comprehensive agreement on the record without citing to those terms there's no evidence that those pretrial memorandums were part of the deal in fact if they were mrs jewkes bush's pretrial memorandum doesn't list any part of her service account as being non marital not a single part of her service account as she was does not merrill despite the fact that she was the number of other assets as being her non marital property and her attorney read into the record of the proof but a number of other assets that were going to be considered her not marital property and no time in either to the pretrial memorandum or prove up was any part of the service considered to be not marriage larry however does concede there were premarital contributions to this account and so the follow up on the justices question about whether he forgot about that region know about that or made a mistake a mistake was made when it came time to put pen a paper on the actual deal itself and this often happens when attorneys in practice do not prepare quadros in quill grows until after the deal is made because those are gruesome will grows include a substantial number of very significant provisions that need to be negotiated by parties as part of the deal you can run into a situation where a great judgment is over thirty days and ange the trial court can lose jurisdiction approach should be read larry immediately brought the trial court's well st immediately brought to the counsel's attention right after the proof we made it when we didn't include permissive credits the said exactly what the oral prove upset that mr george bush would receive one half of the marital portion of the service account that could have been a good way to end the issue because at that point then the court would have been faced with having to with an evidentiary hearing and whether or not there at been a mistake and just the pleadings themselves would indicate and the fact that a judgment was entered over the objection of the respondent if there was a not a meeting of the minds here they could not agree like the parties in lake and like the partisans move to go as to what would or would not be part of the more intricate details of the deal we are courts of equity we are to try to make sure he says are resolved fairly and for this trial judge seemingly to say well mr jeb bush didn't bring it to the trial court's attention to prove up and mr jeb bush had this respondents exhibit that didn't get presented to the court until december and means to prove that the permissive credits are marital is wrong it's quite frankly wrong and so from the very beginning when an oral agreement was accepted by this court without good cause and when documents were accepted that were over the matter under advisement