next case on the call the docket is agenda number twelve case number one one four six five five shannon a mayfield versus howard r mayfield also for the ella please proceed i want to thank you for the to begin with for taking the case both for mr mayfield my client and also in talking to the matrimonial bar in the tenth circuit from them and from judges in the field as well who said they thought some direction and attention needed to be brought to this particular area and the second thing it's  more in response to the the agee's brief but i had the privilege of working on it with the jail in the third district many years ago and when i was first starting out he cautioned me to be wary of hominem attacks and hominem arguments in the other brief because they frequently were designed to divert from the substance of the legal position when we were before the fourth district it was a it was a spirited and interesting oral argument and one of the things they started out real early saying to me was ok what it what it what do you want us to do what are you saying we should do and first off contrary to the agee's brief it's clear it's income it's clear work comp is income for purposes of child support purposes i didn't make that argument  before them i accepted that and so the question becomes what is an appropriate and fair approach that balances all the interests and i think the first thing is to establish clearly for the circuit courts that this is a matter of discretion the standard of review is abuse of discretion in this case judge who did not believe he had any discretion in his order he clearly says he was compelled by dods to award to twenty percent so i think it's important to let the lower courts know that they have discretion in this field and that they may exercise appropriately that discretion the other thing that i would answer to the fourth just tricked and i put it in my briefs as well and and that is simply to approach that discretion with a focus on certain factors that are relevant to trying to make a fair and reasonable division and assessment and order in these cases and one of it the principal one to start out with i think is the nature and the extent of the injury and the impact economically and life wise on the injured worker that receives a settlement  approach if it is a life disability if he's not or she is not going to be able to work anymore that is a sally and factor that i would expect the court to try to factor in the other thing that i think is a factor and i'm not pretending to be exhaustive or having got all the appropriate factors but the other thing is the relative economic positions of the parties if shannon were making one hundred twenty thousand dollars a year and chelsea were fifteen years old i think that would impact a circuit court's decision on whether howard who no longer is able to work and is opted for the lump sum settlement and has to live on it and or so security disability the rest of his life it seems to me the relative economic position of the parties is irrelevant position counsel presumably when you discuss the ad hominum the tax it would be in relationship to the facts as they are applied to howard in this case and i'm just wondering is there something a little disingenuous about an argument that howard has to live on the money if indeed the allegations are that relevant to show that or rather to be contrary to the argument that courts should exercise their discretion to realize that he has to live on this money when he's spending the money in some of these items that they mention and i think howard has realized the short sightedness of his choices there and so and i think that's i think that's relevant factor and i think as whether he got so security or not and he was denied social security so he we were not able to establish disability for purposes of the social security and he may have to go back to work because he doesn't have any money part time if he can so i am i understand appreciate the court's question it went to if i may be frank and i'm not sure the relevance of that question and it it concern me and howard made poor choices no doubt about it it was like he hit the lotto and you know he's he spent it poorly so that may factor in but you know except for maybe twenty percent of it it was his money if he wanted to make poor decisions he was entitle to do you factor in understood from my what i understand he did pay a lesser amount of child support because his injury is that correct i think the his his child support over the years with was was reduced to whatever income he was getting he was getting t t d i expect and as is typical in those cases there was a modification to two to twenty percent of what i was when that wa well i would i would think that the entire context is appropriate for examination by a circuit court when they're trying to be fair and balance all the interests of things  looked at is what twenty percent of that monthly amount would be and that mice and mice my prayer for relief was that it would been appropriate to award twenty percent of what that would have been plus twenty percent of anything else he has an income for the rest of the teenager's life for the rest of the teenagers minority and that would that would be an option for relief and a factor to be considered  so really what you're talking about is how should the court go about allocating that and what factors the court should take into consideration in terms of discretion or what is correct what has been the trial cour did you or your client research in the trial court did you ask the trial court for something less than twenty percent yes we asked the trial court to reduce it to twenty percent of what his monthly amount would be which would have been a considerable reduction from the lump sum twenty percent think the meth medical application twenty percent to the monthly amount not you did you didn't ask the court to look at the age of the child or the length of the marriage or howard that's why there was some that's why some of the amount was different because the way that the in that least in the tenth circuit what happens is they take twenty percent of the parent that has one child twenty percent of the parent that has the other they consideration in terms of fashioning remedies but no i think i think the nature and extent of the injury his age whether he can work again is a factor i think the position of the parties economically is a factor i think a critical factor is the age of the child if it's a one year old child it seems to me maybe twenty percent is just right on but if it's a fifteen year old that may next year decide to move in with howard then it becomes almost a pure windfall to shannon and  of april twenty eighth two thousand and eleven stated that he was compelled to follow dobbs judge thought he had to do twenty percent he didn't try to make any allocation  otherwise and i don't think it's accurately reflected if you read judge person's order the other the other daddy you're suggesting that i guess it's relief that we consider either sending it back to the  exercise of discretion that you indicate was not given or that we reduce the payments based on your calculation of five hundred eighty dollars thirty cents per month which i of which i understand is simply giving his life expectancy number of months into the total lump sum does the record reflect what the actual monthly worker's compensation payment would have been yes it's on that workman's compensation order it states isn't that right this is a calculation of  solutions this was not my thought it was the suggestion though and that is for instance and i'm not i'll stand by my first prayer for relief but but a court with a sixteen year old a similar facts might want to award a limited portion less than twenty percent to the custody of spouse at this time and then the court might want to say well i'm not sure whether that eighteen year olds going to college or not so let's exercise our rights under the dissolution of marriage act and let's put the balance of that or some portion of it in a trust for the benefit of the minor so that if chelsea decides she wants to go to i c c or the you advise howard we know is probably not going to have much available so we put it in a trust for the benefit of the minor children to see if they're going to go to college and if they're going to college then we access it for their benefit and i think that's the kind of creative solution and option that balances the legitimate competing interests that are here and protects the child and probably protects howard if chelsea doesn't go to school maybe it goes back to howard because it was designed as compensation for his injury i guess the other the other instance of  back to that because it just came to mind was the suggestion howard was told and he testified his work comp attorneys he asked is this income you have to pay child support on that and the work comp attorney who was a work comp attorney said no you don't and i think what the work comp attorney was thinking was well this is not income i tell my clients all along this is not income for federal income tax purposes so the suggestion that howard in it's a pretty small community and he had action so to suggest that howard did the settlement from shannon it is not accurate he didn't he thought it was his and  most of his questionable investments occurred before the petition to modify was filed based upon it he thought it was his to do with what he w he didn't he didn't squander or throw it away or or or or invest in other things while there was a petition to modify pending the petition to modify came months and months after half after he have to he received it i wish i had more options but i think if if if the court sends it back telling judge vission that he has discretion and he should consider these factors that would do a bit more work in this case and and the cases will through the creative process come up with ways to be fair and to balance the competing interest in this case thank you thank you not say he was bound by dad's to the point that he could not change the twenty percent in fact what he says was doubtless found workers compensation of words to be income and approved percentage distribution he went on to say that this individual man had option of taking his payments on a monthly basis first of all we have to remember this five hundred calorie month figure is a fiction that's nothing to do with real life what they do or workman's comp is at that time especially you take the lifespan you settle the number get divided by weeks of months they get you a monthly figure of five hundred eighty dollars a month that had nothing to do with his payment if you look at the actual settlement contract his payment was nines is income at the time of the injury was nine sixty nine  over four thousand dollars a month and it's in the contract it shows exactly what the actual award was to mr mayfield at the five hundred fifty dollars nothing but official number to get to that number that they settle comp cases as we know how they settle them it's judge that he had never disclosed to his ex wife that he had settled this case she had no idea whatsoever this came up because of the fact the old is the boy turned eighteen the girl who was six fifteen excuse me at the time of the hearing and him by the way was ten at the time a forty seven something like that mrs may feel in effect supported this child entirely his payments to support his child for the five years that he was on work it's calm told enough to maybe buy a pair of blue jeans a month maybe now mr mayfield comes to court after he spent the money on vacations running land motorcycles and says to the court i shouldn't have to pay these people twenty percent of my life we must remember though that the court had the power to deviate it's in the statute the statute is very clear the court has no duty to award twenty percent but it does have a duty to say if i'm not going toward twenty percent then it is my job to tell you appellate courts and the people that are here and to pursue what the statute why i didn't award that didn't the husband ask the court to do you know because at no point in time was every any evidence ever presented to this trial court about deviation to be very blunt this started out as a very small media motion to modify which no one had paid if you and i wouldn't i would even do anymore other than i had done her divorce many years before we come to the court room we're assuming that he's making some more income the boy is now gone there's only one remaining child and all of a sudden in the middle this hearing pops up oh yeah by the way i got two hundred forty thousand dollars not too long ago and i go on he dead and then off a sudden affidavit shows up that he had bought the land he had bought a house he bought  a thousand dollar vacation he went and bought a motorcycle and during this hearing this all just shows up at no point in time did he say judge this is child support and subject therefore i should not have a child support for this unknown it was never really an argument that he ever asked the judge to deviate look at the court's ruling he does not say he does not have the power to deviate he does not say that i am limited to what i can do twenty five percent in fact what he is what i in my briefing but the attorney general's office said never brief is he had the ability to take this in another method it wouldn't have been five hundred eighty dollars and some cents a month it would have been no less than six hundred eighty six years make it the number for six hundred forty six forty a week minimum which is d t d payment while the case was pending but he wanted to money upfront because he wanted the lifestyle that went with that if we look at the statute and we look at what's in there about the reasons that a court can deviate you look first of all it says the financial resources of the child but this child's a fifteen year old child she was ten when dad was injured she was about thirteen when dad started spending the money that michael had now he's spending and that lifestyle never came to just trying to get by the standard of living the child would have stayed had that money appeared that child could have a decent home that child could have had the monies the rail that money could have been set aside for the mother for her future needs dad certainly didn't set that money aside for future needs dad made the choice to take this two hundred forty thousand dollars and spend it now spend it today and now he wants this court to say ignore the fact the judge you should have the right and the duty to review what was right in this case ignore the fact that he was supposed to take into consideration the relevant factors to deviate ignore the fact that we didn't tell you to deviate or even ask you about deviation and look at the facts here this man was busy so busy spending this money for his own personal needs not for his children the child so on nothing basically thirty seven dollars and forty seven cents a week and now he comes to you and says destruction happens my god this woman shouldn't have this money but then look at the educational needs of the child that's another factor the court has to deviate and then the financial resources and needs of the non custodial parent those are the reasons he's already spent eighty percent of this money before he even knew it existed if you look at the statute you look at the case law you look at the fourth district case what he's trying to say to you is so what is going to make these kids make it's money it isn't fair come on do this we've already got the mechanism buil on the statue from the day that it was passed all judge shushan had to do was say i think forty six thousand dollars is too much to give this child let's again remember that for ten years she'd been living on thirty seven dollars away excuse me from ten years old she'd been living on thirty seven dollars and some cents a week i don't think it's fair she gets that much i think he should have by or that i'm going toward use a number thirty two thousand dollars or whatever the court felt he had that discretion and he never at any point in his decision says he didn't have that discretion what this case really is all about is this isn't the only time you're going to see this workman's compensation cases or you're going to see personal injury cases there are already a bunch of cases on those finding those to be subject to child support i come from peoria so i was you might guess we have caterpillar tractor company there and caterpillar tractor company and my first every year gives large bonuses and that every year seven years they do in recent years has given large bonuses the courts have consistently ruled that even if th bonus is one hundred thousand dollars and there's one child that hundred thousand dollars check net of the twenty percent has to be paid to the ex wife every order in peoria county that i've been involved with a caterpillar manager person has that exact order whether it's a five thousand dollars bonus one hundred thousand are in somebody's president's cases five hundred thousand dollars which i've seen every one of them says twenty percent because the children have the right to live in the same lifestyle they would have lived had this not happened howard wants to live the lifestyle that came with his bonus he wants his child eleven thirty seven dollars a week that's the basis of what we're here today that's the basis of the peel it is only fair that this daughter basically has from age ten to fifteen lived on thirty seven dollars a week and a mother who supported her for a bad five year period forty six thousand dollars what would that be let's see that's forty eight that's roughly sixty we that's less than eight hundred dollars a month of support for that five year period i don't think it's an equitable the judge did that his order doesn't say he did that and if you look at the cases and i do date also of course had a chance to read the  i thought it was very well written clearly this is not a capital return on capital it's not a return on your ira is the case this court has actually ruled on the definition of what is income i don't think it's qualified on that and i guess we don't want her arguing the question of whether it's income which is nice to know that really talking to the effect that the number and questions that when it really isn't for the rest of his life because of the reason they set it up the way at that point my understanding is in talking to workman's comp people would not go down work life not life expectancy the reason they set it up for the work of his life is because if they set it up this way he would not people who did be precluded from going to social security administration and asking for so security disability which as missed as counsel mentioned he was denied but he did ask for it at that point that's right some legal fiction to use the had knowledge that but if i'm injured and i get a reward i have young children they should benefit from the injuries that i have i'm not saying all of it and end up in the sort of says that he has all of it in fact he's going to have a signing and he's going to still have his vacation he's still going to his motorcycle he may have to take a loan out of his house to pay back to the mother a portion of what he has already spent was raised or those things were not ra basically going on he didn't ask for a deviation he just said well you know i got these awards is all i got left is a very quick crile there wasn't that much there other than once i found out about the comp case obviously a few questions which led to pursue new standing much a decade many felt as happy david that day rather than three days prior as the local court requires when i found out that he had hunting land that he had a motorcycle things we didn't have any about it's kind of a funny case usually you have much more analysis before you walk in but small cases lead to a quick back sometimes counsel just to follow up on just certain certain garman's a question to you about is this for life expectancy or whatever the order  that appears to have a finding here says that the respond is correct in finding out that the lump sum payment he received represented his wage differential basis over his thirty four year life expectancy and i think that's a misunderstanding by  decision to modify was filed and i was there representing him at the hearing and the motion to reconsider and my request up please and my request for relief at both of those was to modify it not award to twenty percent and did not correctly apportion the income is that right my argument is and it's in judge sions first put a one page order the court is compelled to follow dods and continues to find that all right right right i asked that it be differently allocated before a judge who should i ask that he just give one hundred one thousand a week based upon the lifetime which is a significant modification downward and he that just briefly it seems to me that those are relevant factors that have to be i mean if you had somebody that didn't foolishly blow it when he didn't realize he could have it all you could be dealing with a seventy seventeen year old a fifty thousand dollars payment six months before she turns eighteen and goes to school those things can come up again and the the bonus from caterpillar is completely in apathy that this was not a bonus that's that's wages you're going to get one next year this was a disability payment and whether they changed the factor or not they were factoring in the fact that howard's going to be cannot continue his former employment he worked out of the union hall he was either a boiler maker or or an iron worker the sort of security decision admitted but he is never going to be able to do that again but he can answer the phone for somebody or something like that that's what their occupational expert put in so the fact that he's disabled the nature and extent of disability should be a factor that the court takes into consideration with everything else in exercising that discretion it or does compelled merely mean i've read it and i and i'm compelled to do the same thing with died and i guess i may be coloring it from the judge sions comments in the motion to reconsider where he basically just david and i practice in the tenth circuit and that and the tenth circuit has electronic recording now so we don't have a court reporter so you can in the court room and which would county came in and they had all the of recording you have to order a court reporter there and i the polish lee in retrospect assume that we were being recorded because they had all the accoutrements and then then when i ordered the vast order the transcript the transcript you know we you have to order your own trial court reporter so that's that's on me it sounds like your position really is that you want to ruling from this court that there has to be an exercise discretion even in a civil context there has to be an exercise of discretion by the trial court regardless th have a situation here just accepting your argument and i'm not saying works of the just for purposes of argument let's say we're accepting your argument that he had discretion that he didn't know he could actually say and yet the court in reviewing it looks at all the same factors the same record that the trial judge did and said this video he got it right exercising discretion or not he got it right and you would have most say well the fact that he didn't go through step one two three four and look at all these factors he have to send it back i'm saying the appropriate relief is to send it back to judge who  indicating that he has discretion and let him exercise that discretion and i think the appellate court thought otherwise obviously but will they make the statement in their opinion as well if they say that he is a pretty and was consistent with their own i mean they no i i understand that but but did not consider alternatives he did not consider factors or options he simply awarded the twenty percent and returning it to him with an indication to all five districts that they have abuse of discretion and need to consider factors will allow him to do that and maybe maybe his decision after all of that we will be twenty percent under these circumstances but it will be after a review an assessment of the full context thank you thank you case number one one four six five five shannen eight may feel versus how or are they field is taken under advisement as a general twelve counsel thank you for your arguments