court confirmed that he had a ballot basis for his request to modify mr k s maintenance and that he met his burden of proof pursuant to section five ten of the i am d n a to establish a substantial change in circumstances namely that his income had  approximates what the trial with yes did what's wrong with that well you know i rang we did talk about this in our briefs that we do believe that first of all that the number that was actually given by the trial court the twenty expert mr newman read be twenty five thousand seven hundred forty five i know that most of the response from this is true ok in her brief to this isn't a footnote and as your honour's may recall that that was one of the objections that we had  again which was agreed to by both sides on reconsideration we raised the issue you go back the circuit court said that it could now look at the other factors in five ten five ten if south specifically looking at the plain language types of may that's and of course one of the basis of statutory construction one of the cardinal rules is that you cannot read into statutes any exceptions or limitations which are not there so five ten applies by ten says an all such proceedings the court shall consider the following factors and attempts to earn income if you look at page seven of the reconsideration order and that she attempted to a rehabilitate by admitting that her efforts to turn a lurch which was valued at zero on has been a money losing enterprise for basically eighty section five ten and also under a fair reading of the dissolution judgment at page thirty which invision that mrs tuke a would make reasonable efforts to develop additional skills and again in the reconsideration order the circuit court went back and said  dissolution contracts which says that a court does not necessarily have to do at aat when the quote only talks about one half of the equation here we feel that there is an error there is an error in law and also that there is an abuse of discretion here was reasonable under the circumstances plowing in one hundred sixty thousand dollars into a money losing business that was valued at zero and that in her trial testimony herself that she testified that she was loaning money to a lawyer to keep it going and she admitted that her to alert was money that she probably had lost forever and i direct you to volume thirteen page ten of the record for this this is not a reasonable effort under the mandate of the statute and again you're rolling your your honour's have already decided this in a marriage when it's connect and also in a marriage of bertie which is a very recent case from the third district which bell stand for the proposition that i am d n a does not contemplate that the payer should subsidise a pay is failing business and i know honour's again talking about the footnote problem in this two case brief mistake his response to the critics connect case is contained entirely within the footnote and again that response itself is totally unresponsive because it does not speak about the legal issue and was that case as the court decided here's what you're saying that is correct and looking at all the facts that are presented here your honor as to what was done and not done during this time for somebody who is so very highly educated and actually got the dissolution court said here at page forty if it's if it's order saying that it expected that mr kay would make more effort and that again that is something that is not addressed in the police free and i think that that's a very very important thing is that there was contemplation by the court at dissolution that she would make some efforts to do this and that the record reveals that what was done was four hundred sixty thousand dollars into a money losing business going good money after bad which is how the courts think that and it's opinions and again as i stated the entire the entire response to this is in a footnote it doesn't address because he's in the amount of one hundred sixty thousand belie that statement your honor his actions speak louder than words what the court did here was use a comparative ability to pay analysis rather than an inability to pay analysis and this is shown by two things which were two main things which are in the record which show that she did not have an inability to pay her fees the first is that mrs tuke a had already paid the majority of her fees generated by the modification proceedings the record revealed that she had paid three hundred seventy one thousand dollars in fees by the time she filed her petition for prospective  your ability to pay by already having paid one half of the fees incurred and i note that in her brief mrs tuke it does not address this that she had already paid the majority of her fees and in addition your honors i also know that mr k voluntarily reduced her liquid assets by more than one half million dollars and we submit that in doing so that she gamed the system in the process by surely converting five hundred four thousand liquid assets into home equity by prepayment of her mortgage three hundred of four thousand of which occurred after mr here i filed his modification proceeding the trial court in both its original order and the reconsideration found that repayment of a mortgage is reasonable and your honor is we have no qualms with that statement in the abstract what the problem is here is that it misses the point when it's applied to the facts here the facts suggest that this was done to artificially reduce her liquid assets for the purposes of the fee contribution petition how do we know that right we can we can look at what she testified to she testified at  she would be responsible for him they unfairly insulated this money from her own feed payments and the court the trial court failed to address the specific issue of whether this cash movement was problematic it just  estimony and again to find it really it smacks of gamesmanship to move three hundred four thousand dollars of assets after you are in litigation into this kind of a liquid via call and during a in the work she substantially decreased her monthly expenditures who is in a better position to determine the question of the fact in that regard well your your honor they are twenty one days the circuit court's ruling here was an abuse of discretion because under these specific facts he only spoke in his rulings to the fact that that was that there was that where prepayment of this market was reasonable and didn't go further once again to address on in the court's ruling the court said that i believe that that the language was used that the court believe that she had made a good argument that she had shown that she had an inability to pay it and he looked at  the pain will undermine the individual's financial the building to me either one of those one he did it he said that it was based upon the status of her accounts as they were at that time and the accounts five thousand to thirty two thousand five hundred dollars about prejudice but mr us suggested to the court that if you reduce to twelve thousand five hundred dollars per month that icky right so he had no alternative but to litigat trial level she had put out of the field for almost twenty years the technology had passed her by and she came to realize after conferring with many people in the industry that this was not a fight with me that was the time of nine dollars an hour this is a woman who was getting thirty five thousand dollars a month in maintenance and she's seeking a job that pays her nine thousand hours that reason i think was reasonable because it was the beginning of a new career and she had to start a usual thing to begin with i think we can agree on that usually there is a warning permit me to use at this level thirty five thousand dollars a month i think we can all agree that that will say that was a good thing for me all of one hundred thousand dollars the court found that although the pay died off twenty five and the twenty thousand dollars per year this was a very prestigious publication that alert put out it's used by the united states a supreme court breach they claim things she has i think bring her three assistants you know three people that were in her employ and i think her children are adults so they're not in the home so she had three people inherently supporting wants money and she at and the worst she criticized for exercising her business judgment and now she's planted herself around and that's the stage where she's at she fully admitted to the core that this is not working i need to do something else i'm trying to sell it doesn't look like their library situation is going to work out for me at consulting with friends i've looked into different positions i'm not qualified for them and now she starts going by our side where as a pastor parent not knowing that she has been has such a using retirement far less which the park and health crisis say for say would be would undermine your financial stability because the day will come when that let much how much is left in the balance to do for her income how much what's the remaining balance of front of attorney's fees for which she is obligated to pay today well when you whenever you file for pre what was her balance on her attorney fees i don't recall ok she gets twenty seven thousand five hundred pounds a month and she has liquid assets of about half a million dollars so you're saying that she couldn't pay her own attorneys yes first law her income of twenty seven trial court took into consideration the fact that her liquid assets were reduced by her decision to prepay her mortgage by more than a half a million dollars so that reduced the amount of what's your response to that was simply trying to secure her future so that she has a home that she can live that she got from living in a seventy two hundred square foot home at twenty four fifty way every a second home in her disposal in michigan now she doesn't have a pay and you know it sounds like that's what you're doing in the standard is the inability of one party paid versus the other party ability to pay it doesn't say who has the most money does this t v roy have more money key i think we can all agree that that's true but that is not the standard how many why mrs miss tookie is i'm able to pay her own attorney's fees when she has she gets twenty seven thousand five hundred dollars a month she has five thousand dollars she paid all of that and she paid the difference between one hundred twenty five thousand and three hundred forty five thousand who invested the power at the time of the motion for feeds to defect the hero was down to ninety thousand dollars and she miniscule amount of money compared to the fees that we're speaking about and to answer the parts question with regard to inability to pay we can look at this in a vacuum you have to look at it from the perspective of what does it mean to undermine someone's financial ability you have to look at what was that person's life style and what was her future in terms of her ability to pay for her future going forward there's no question that a barrier to be had pay another hundred twenty five plus thirty five thousand dollars in fees that the for this was a marriage one point one million dollars in attorney's fees six hundred thousand dollars for the underlying case another five hundred thousand dollars for post to create shoes including the twenty one day hearing that  have the ability to pay the fact that he can easily afford to pay is the law i also believe that the parent back up a private tougher standard than the courts should have applied under the snyder case you're kidding  she qualified for fees because without being because it would ask me undermine her position if all we're doing is providing a recipient a permanent maid us with the obligation to pay hundreds and hundreds of thousands and thousands of legal fees the use is there to her permanently in the civil war who will absolutely undermine her financially but this isn't about i'm going to save twenty five hundred dollars a month out of my order of m factor he paid attention to her he never said that she didn't have an obligation to rehabilitate herself he found based on the facts that she was doing what she was supposed to be doing again i say to the hey think ace writers that you have even to rehabilitate them in that situation you have to tell the recipient this is what we expect of you be blindsided like this three years later say sorry you lose because you have three years and you have a rehabilitative yourself would fly in the case failing business she also had made no real job search efforts at all she was fifty six years old at the time of the dissolution of two thousand and six she had a good ten years of of work experience ahead of her but she did nothing she applied for no jobs made no efforts to not have a current resume your honors it was only after mr here i found was not a fixation petition that minimal efforts were made but they were very transparent she clicked on the seabed to wrap site and then she decided herself that she was not going to go any further but that i buy in twenty one page twenty two and twenty three she said aided by she looked at the sea burger skills inventory should never completed it or sent it to them she felt she could not check of enough boxes so she decided not to do it at all she had a referral from judge shields she took every week to respond to that and said well when they didn't come back i guess i wasn't qualified she has never tried i go back to the old adage of the lottery have if you don't play you can't win the same thing here if you don't submit your credentials anywhere you cannot get a job and this is what happened here she did not try and mr i think the talks about the h and r block well off those efforts are not commensurate with her experience as having a master's of library science and also a j d but what the h and i brock experience does share your honour's it shows that she is capable i really training and she actually has done it but she's done it somewhere that's totally inappropriate she testified a volume one thousand pages fifteen to twenty two that she went through an eighty five hour program at h and r block i question is why could she not have done that in terms of her librarian skills and gotten up to speed on what she needed to so that she could actually fill out that seed burger website questionnaire and that is not the standard under in re marriage of snyder and it is an inability to pay and we submit that after she paid her fees to opposing counsel and after she moved five hundred thousand dollars into her home equity she still had nearly three million dollars left after she did that and that cannot in any sense of the word be considered and ability to pay and we just you know want you to highlight that you are finally your honour's we also