adventure for all of us and we really appreciate your availability before we begin just a word or two about our format this morning just as if you were in the courthouse in elgin you will each have up to fifteen minutes for your argument the appellant of course will also have up to five minutes for rebuttal you've heard the buzz there that mr kaplan has he will mark the time with the b you do not have to use all of your time allotted i'd also like to remind you that as is the practice of the nd appellate district we have all read your briefs ahead of time what will be a little bit different this morning is that we will not interrupt your arguments with our questions as we usually do we felt that since this is being done remotely it really would be too difficult to proceed in that manner and really know who was asking the question then employees counsel questions i would like to remind you that no one except the clerk is permitted to record the proceeding today so do either of you have any questions before we formally nature of the award from a permanent or indefinite award to a reviewable award just briefly the parties are currently in their early sixty's they were married for twenty four years divorced in two thousand and seven and of the permanent maintenance award has been one that essentially gave my client twenty one points forty four percent  of the husband's gross income the ex husband's petition in these review proceedings were prompted and are based on a lo but nevertheless she claims that the cause of his age at the time of terminations which was roughly sixty three  segue without interruption into retirement he in fact had been intending to return fire years later at age sixty five later meaning two years after  centers now on red whether or not he has an ability to pay and whether or not he has a continual need for maintenance the test or a modification of support is well established by statute in pike case law and in order for a modification legitimately to be granted there must be a substantial change in circumstances the circumstances in question mean the needs of the recipients or the ability of the others to pay course the party who see granting modification in this case because the trial court deemed that the change in circumstances was really the mere fact of any changes in circumstances regarding mr miller's ability to pay or need for maintenance the case law and particularly authority makes clear that the loss of employment for a retiree is likely to have much different consequences than the loss of employment by a younger person because loss of employment by in and of retire re is something that is and to dissipate did in terms of there being to be made on a case by case basis invert heene dischord described analysis of the change in circumstances regarding a retir as demanding a holistic view of the gores financial position as quote considering all of the financial resources including assets and even the financial which the trial court could even have made a realistic or holistic assessment of mr miller's financial circumstances that the that happened in this case clearly there is no evidence of income or at least not substantial evidence the only evidence really of mr miller's  financial circumstances were found in his financial affidavit to which he testified at trial but his testimony really does not a loose the date the information that's in that indeed the indications are that she was making that she is making no with excuse me the current there is no indication that she is making any contribution to joint expenses the current sparse testimony but we know that she has upwards of a half a one million dollars in assets softened nevertheless doesn't contribute to joint expenses there is no evidence of how long  mr miller's assets might lay off to fund his current life styles there was no consideration of the draw has financial in the david indicates that he is making a monthly basis which would count to the evidence of his ability to pay so retirement constituted a substantial change in circumstances but the trial court really did not consider at all mr m ability to pay to continue to pay maintenance that precisely what is required under the case law so we maintain that this was a significant abuses this question under the standards of exercise discretion and that the only remedy for m failures to sustain his burden of proof on the ability to pay is a reversal of the existing order of the trial court there are two additional errors that we raised in our brief and these two additional errors are not a ll dressed in the answer brief of mr miller's but these errors are crucial because they bear around the question of whether or not renay as a continuing need for maintenance is two additional errors to do with the trial court treatment of  employment and the trial court treatment of the expert testimony in this case regarding the st menses of these which  her for her non employment there are several references by the trial court in its findings to the nine employment matter perhaps the most  retirement in jeopardy by its rulings but the trial court made two really erroneous findings st of all the files put it burns as much as thirty thousand dollars a year there is absolutely no basis in the record for this type of speculation perhaps the most telling piece of evidence that indicates the error of this finding is the social security report of the annual income earning over the years and the think come report shows that there were many years during the marriage if not most of the years that she earned zero income and in so far as earned income in any given year it was generally what might be term modest certainly because it was never more than eighteen thousand dollars but normally what in those years that she did earning from it was usually minimal like maybe a one thousand or a couple of one thousand dollars a year so needless to say this situation well supported the original grant of indefinite or permanent maintenance in this case but what is relevant regarding the  or in the trial court's treatment of were reno's earnings is that really there never has been a specific expectation that she would have participated in the work force and been employed person the burden a decision is particularly instructed by this point some of the comments or the reasoning and his application of or hines well the court recognized for hines or at least he stated that that he was aware of the decision but he doesn't he was not presented with evidence so i mean the the there's kind of a to pour part problem here and i mean it's starts st with the failure of the movement to fulfill the burden of proof the burden of proof is based on retiring is to present a in a ward of port to support a maintenance award and the st problem occurs when the when mr miller simply doesn't present that kind of real list burden of proof what the trial court appears to have done is said well there's a change in circumstances because mr miller lost his employment and then of course he relied on the expert testimony regarding let's say the value of reno's holdings and factors as are supposed to be set out as in for would it have been proper or improper at that time for the court to take into consideration your client's lack of work renee is what the expectation was for mrs miller so i mean there are there is nowhere in the judgment in his findings regarding maintenance and although he stresses the disparity in income between the two parties and the fact that it would not be reasonably anticipated that the reno whatever may have her husband's income he he certainly does not support  review period nor does he even take an expectation of what she might be earning in the future and that's from the original judgment but what's even more significant then is the  coffey i think it was indicated that if any assumption and paranoia he made a lot of assumptions been coming up with his determination that she would have sufficient income for the rest of her life if any of these assumptions changed or if the marina circumstances changed the result changed is that your understanding was that correct proactive and that is i'm reliability of either of the experts given these factors that i mentioned and what the trial court did d ok so i'm sorry that's my call failed to take me off problem is that the computer programs that he relied on the money guy pro the limitation of the program program the results generated by the program meant to be reviewed regularly because the program is a financial planning tool and of course finances can change more or less on a dime let's say so the problem with mr coffey stem to money is not not inherent with the program he used or not inherent with his methodology with the way it was used in this trial to predict a result thirty plus years into the future which is the expected life the life expectancy of living that is somewhat more than twenty years at the time these opinions were given so mr coffey is in the trial court is using this to coffee's testimony to predict a result twenty years in the future when the christiansen you know there are some problems with this testimony and i would read the trial court resolution of i think it can be concluded that the trial court conclusion was that his projections were not credible so so his projections were not credible we could accept that finding but that does that investing mr coffee's conclusions with any greater credibility because they really only have credibility for some short term money guy croes simply cannot be used to predict think twenty years future the in the market as having occurred really fairly frequently in recent history and they include the dachau bubble of your early two thousand and the actually are one rd one of the records but anyways these these two experts definitely agree that if an anomaly or a bubble or a shock to the market of hers that anything either of them have to say has to be thrown out the window so the significance of  much maintenance she is getting or not getting as long as she has the right to make that its forces her to keep bearing the burden to come in for for review of maintenance of her financial anything further before we turn to mr doyenne not knowing or for thank you ok all right to do in which you like to begin please thank you justices i want to start with trying to articulate we're really addressing here today because there's an argument to suggest that mr miller's petition should have been denied but that can't be the end of the discussion because as a practical matter the order that we were seeking to modify or terminate the amended order on post trial motions that was entered on january th two thousand a it's in the record at  twelve and in the appendix at page forty one dollars that's page three of the order clearly identifies that mr miller's maintenance obligation is tied to his income from employment and schoolrooms any income from return on investment asset investments or any passive income or any assets that are awarded to him as pursuant to the judgment that specifically limits the maintenance obligation to earnings from employment salary bonuses grants and options granted after the dated dissolution of marriage so upon his determination from employment with no with no employment income after his severance pay under the judge spence's the original trial court judge's order the maintenance is reduced to zero so this is issue of whether he mr miller met his burden of proof to show a substantial change in circumstances it's not just looking at the fact that his employment was terminated it's looking at the order they were seeking to modify that defines his main that's obligation soley based on earnings from employment so if is our news from pointers zero we have to address the orders the substantial change in circumstances is under the existing order his mane as was reduced to zero so we brought it to the court's attention but really random or should have brought this to the court's attention because he could have just not filed anything in quick pain i mean it was important to get it before the court because obviously that wouldn't necessarily been the end of the discussion either but somebody had to file the petition based on the loss of employment so when we talk about the burden of proof i believe petitioner and partly based on one sentence in the brain a decision which i'll get to in a nd i believe the petitioner conflates the burden of proof to prove a substantial change in circumstances with been a substantial change in circumstances if if there has not been a substantial change in circumstances that's the end of the case the petitions are denied the issue in this case is whether or not mr miller's loss of employment which they've conceded was in good faith kept the two to substantial change in circumstances when you look at the circumstances of these parties you have mr miller who the court found had net worth you know the state valued at two million four income over the course since the judgment was entered some years had more some years had last probably the overall average was over five hundred thousand but for purposes of maintenance that was the limit on the maintenance but to suggest that someone who has two million four net worth and loses an income stream of five hundred thousand dollars a year to suggest that that's not a substantial change in circumstances i think is is ridiculous the fact is on its face that loss of employment income substantial change in circumstances so then we then move to the nd step which is to consider all of the factors under five hundred and ten dollars and five dollars o four in considering those factors mr miller does not have a burden to prove the existence or nonexistence of any of these factors that's for the court to consider all of the evidence presented by both of the parties and considering those factors make a determination as to whether or not maintenance should be modified whether or not maintenance should be terminated if not terminated but modified what is the appropriate amount of maintenance there's not a burden of proof as this perk of setting the argument that jeffrey failed in his burden of proof on ability to pay ability to pay as a factor for the court to consider is not an element of mr miller's burden of proving a substantial change in circumstances now what what bernie a case says in some other cases of talked about is these shoes can become part of the consideration if the watts of income from employment by itself does not establish a significant difference in the income of the pay or in other words in bernay we're talking about somebody that had a net worth that was going to be in excess of five million dollars and still own the business that he used to work for and would still be earning income from the business even though he wasn't being paid a salary so that the part of the puzzle that was was his loss of employment earnings was was by itself not significant enough to establish a change in circumstances that's completely different from the facts we have in this case the other case for hangs i think it's important to know and in the bryant case acknowledged that even though he didn't substantial change in circumstances in the context of maintenance and child support the cases on each issue can be instructive there is a significant difference in considering a pay or as obligation to pay child word as compared to their obligation to pay maintenance the the language in the very highest court  states the this is in the hands decision and paragraph eighty six this commonality between child support and maintenance renders maintenance cases instructive and discussing maintenance cases  mindful that the duty to support one's minor child is more absolute than the application to continue maintenance and in this context if there's a judgment entered that set the child support obligation you know you have a minor child and you know at what age that minor child is going to be emancipated or at least expect the minor child to be emancipated and you have to make decisions regarding your employment search for employment or continued employment or retirement in the context of the absolute obligation to support the words permanent and rehabilitative over the years even though those were never really defined ever in the statute and now we've had significant modifications to the statute and we have lots of case law sacking this issue of what permanent means or what rehabilitat means or what modification means or what review means but the court in re the marriage of war jack which we cited in our brief made the point that in the context of these cases permanent does not mean everlasting so as after retirement even if it's a permanent maintenance case the analysis is different and you least have to grant the petition to modify and then apply the factors in determining what maintenance should be going forward  the one sentence and burn a that i that i take exception with that's not the decision in general but the reliance by petitioner on this idea that there's a burden to prove an inability to pay  now keeping in mind in the context of that case maintenance the issue was terminations of maintenance so you can never come back and have it modified or reviewed again the comment of the court was jerry was required to show that a substantial change in circumstances had occurred namely either that lens financial needs had significantly decreased or that jerry was no longer able to pay lin's maintenance that was a paragraph eighteen of the decision in the context of the entire decision and everything the court considered and considering all the other case law i would suggest that that phrase or th jerry was no longer able to pay lin's maintenance actually misstates the petitioners burden of proof there isn't a burden to prove an inability to pay there's a there's a burden of proof to show a substantial change in circumstances once that's proven th the court has to consider all the factors in bernay in considering even if you found there was a change in circumstances it's clear from considering all the factors that make that still was appropriate because of the substantial wealth of the jerry the pay or compared to the relative lack of well of the recipient in this case the facts before the trial court are that you have two people approximately the same age neither is working they're both employed jeffrey miller's net worth is about two point four million dollars is found by the trial court and lorraine miller's one million four hundred thousand dollars as i pointed out in our brief that didn't even include the seventy one thousand two hundred dollars payment the jeffrey had to make to kill or to lorraine and for the true  for two thousand and eighteen so there there was not that gap in their net worth the next thing when with the court considering all the factors the court has to consider what efforts lorraine a made to just to contribute to her own support not that she could be self supporting what efforts did she make to contribute to her support it's a factor the court has to consider so the fact that we introduced expert testimony to help the court consider that factor makes it relevant if she had just earned minimal income she could have substantially increased the likelihood of all these variables under this money program that she would have six dollars be more than likely and almost guaranteed to succeed and live in the same lifestyle the probability of her achieving that is less without the imputed income but you can't ignore that factor so the expert testimony weighed in on that factor the other point is with regards to the last order on a modification petition was in two was the two thousand and thirteen petition which the trial court denied i think petitioners putting words into judge cruz's mouth the fact of the matter is if you look at judge spence's original decision he specifically commented on the fact that miranda miller was pursuing an undergraduate degree and he set maintenance and forty one forty four percent of gross income for the st four years then stepped it down to twenty one forty four percent after the st four years specifically an acknowledgement of the fact that that cable arena miller the opportunity to complete  and still need twenty one forty four percent of gross income for maintenance the fact that she chose not to work is on her and she's going to have to suffer the consequences of that in the long run but as of two thousand and thirteen the fact that she hadn't wor that mr miller had already gotten the benefit of a twenty percent reduction in maintenance after the st four years so the imputed income was basically built in to judge spencer's original decision even though he didn't identify an income level for the rayna miller the fact is if we say that jeffrey miller's income averaged five hundred thousand dollars a year by reducing the maintenance from forty one forty four percent to twenty one forty four percent that's one hundred thousand dollars a year and maintenance that lorraine and miller was never receiving after the st four years with the idea that that loss of maintenance would have been made up by some income from employment on her part based on her obtaining her undergraduate degree so there was an imputation of income although not identified by dollar amount that was included in in judge fences original judgment  so just to focus a little bit on what judge cruz did the trial court did with regards to changing the nature maintenance i think what judge cruz did is exactly what some of these more recent decisions have suggested and that is if you know something's going to happen in the not too distant future and you're setting maintenance let's help everybody by identifying what the trial court believes in the future would be something that might trigger a future modification he wasn't changing the nature maintenance he was doing what the appellate courts have asked trial courts to do and that is he identified lorraine and miller's eligibility for medicare as being something in the future that might be a basis to modify the maintenance because she'll no longer have the premium for private health insurance which the court i think was one thousand three hundred dollars a month so basically he was just explaining how eroded the one thousand three hundred dollars per month and saying you know in the future if she's eligible for medicare and it's going to continue forever unless and until somebody files a petition to modify and a trial court at that time hearing the evidence decides to modify it so the government any built in automatic terminations or modification tied eligibility for medicare it was just the court the trial court pointing out this is something the trial court took into consideration it's a fuse and we've got the language in some of these cases now saying if something's foreseeable it can't be a substantial chang to hear them time but just go ahead finish your sentence or to just saying i do not believe the trial court changed the nature of maintenance by pointing out a future event that might be a basis for modification you know that is going to say is anomalies in the experts both are opinions about different things that could happen in the future you can't know but those things could be the basis for petition to modify so it's not we don't have to wait twenty years to review this anybody can file a petition  modify just mr miller it may be his last could lose more than mrs meller who knows what the impact is going to be going forward but either party can file a petition to modify if there's a substantial change in circumstance thank you thank you count so just the jargon some questions yes my primary question is to clarify your point if you your position is that if the cure you modify change a substantial change in circumstance but your position in death finding that is that the change in circumstances is unrelated to either ability to pay or need is that correct not unrelated but well it is part of it or is it not part of it if if the loss of employment does not impact in any way the ability to pay then there's no substantial change the what petitioner suggested is that mr miller had the burden to prove inability to pay that his burden of proof was to show a change a substantial change in his ability to pay ok then here's my position my question is if you show a loss of income but it does not impact your ability to pay have you met your bir if it doesn't impact at all your ability to pay then i'd say we did not meet our burden but that's why i tried to distinguish the burn a case if you have five million and that worth you still own the business you're still going to get business income even though you're not drawing a salary where where has there really been any difference that's like it doesn't have to be income from a business or employment or can it be income from any store with depending on the net worth of the individual it could just be as well in a small but i do think we do have another distinction in this case is the underlying order only orders payment maintenance and income from employment so the net effect of him losing his employment reduced maintenance to zero which i don't think that's what petitioners asking for well the order that  the basis for a modification but he didn't rule in advance that it would terminate when she becomes eligible for medicare there would have to be the filing cabinet positions made that was it was pretty close to money is it your position that your client can no longer meet his maintenance requirements that he no longer has the ability well in a vacuum i mean he he would substantially be prejudiced in his ability to meet his own living expenses in the lifestyle they enjoyed during the marriage if he had to continue to pay maintenance  and and what he would be doing if he had to continue to pay maintenance would be jeopardizing his own future to make up for the fact that lorraine and miller never rejoin the workforce because that's the if she had rejoined the workforce the gap between their networks would be substantially smaller and you know when i don't i mean again petitioner hasn't suggested that an appropriate amount of maintenance but if we apply the guidelines which have a petition to modify it we've already argued if we deny this petition then the maintenance is zero which nobody is asking for that result so we are modifying the maintenance we have to apply the guidelines which would be capped at forty percent of the combined net incomes so i don't know that maintenance would be i think maintenance would be less than one thousand three hundred dollars if we applied the guidelines experts excluded religious mary residences took their investment in invested assets and each expert did a different analysis but i mean whatever is good for the goose is good for the gander so if we say lorraine a miller's net worth after checking out her real estate is this and jeffrey miller's net worth after subtracting out his primary residence is this and we apply the exact same level of income to their invested assets and then we determine forty percent of the total income i suggest to the court that the maintenance would be less than one thousand three hundred dollars a month ok i have no other question well yes i think the court properly considered all of the factors under five hundred and ten dollars fifty cents which includes ability to pay maintenance yes bricks that have made by the recipient to support contribute to or own support the employability of each party the assets each party has been in determining the relative ability of each party to maintain the lifestyle enjoyed during the marriage i think the court correctly maintenance beyond this one thousand three hundred dollars a month would jeopardize his ability to maintain the lifestyle now there is a part of this which i don't you can't ignore the fact because the statute requires to take into consideration the recipient spouses for it's to contribute your own support so the i think the trial court concluded to the extent there is a difference in jeffrey miller's ability to live in the lifestyle enjoyed during the marriage compared to lorraine well only to the extent that she would be contributing to what would i normally be joining expenses like payment of the mortgage utilities things like that i don't think the court can take into account her that the current  worth but in determining what jeffrey's monthly living expenses are and i think he was cross examined at length on that and some of the expenses that his current wife is paying were not even listed on his affidavit to begin with because he anticipated those questions but he was also cross examined on whether any of the expenses listed on the affidavit his current wife was contributing to and i believe the testimony was also that his current wife does not have any  income from employment either if we found that the court did not make specific findings referring to definitely need to pay maintenance would your position be that we should remain and for the court to make both findings my reading of the case law and the reading of the trial court's decision i think the trial court clearly made reference to these factors and that he had considered all of the factors i i don't know what the utility would be  for additional findings i mean it as a practical matter where were we going with that he has to but based on the court's findings which i think he didn't even consider the seventy one thousand two hundred but he made a finding that je those facts and considering all the factors there's no basis for an ongoing maintenance of word except for the swf or her ability to pay this health insurance premium was there any binding that y d continuing to pay the existing maintenance what do we compromise his ability to meet his own meet is there any finding about the balance think the trial court made a specific finding that i mean i think he made a finding that continuing to pull one hundred and seven thousand and eight year would would have but he has between one hundred and seven thousand a year and the fifteen thousand six hundred a year i don't know that the court made that finding thank you i have no for the question this is just the sing off i just have one follow up question while the trial court made a finding regarding jeffrey net work was there really any testimony or evidence other than his financial affidavit as opposed to all of the expert testimony regarding the re no financial circumstances was there any evidence introduced other than the financial lasted a bit regarding jeffrey's net worth well he testified you know like for example that he sed his stock account was still tied up that he had to wait a few more months before he did and he wasn't sure what the he didn't like having that much tied up in the stock and he talked about how much he was planning on pulling out of after tax accounts versus deferred tax accounts  his right testimony rather than any expert regarding the testimony of both experts could just as easily be it's just a rate of return on invested assets that applies equally well to jeffrey as it oh so you could say well they criticized and jeffries expert you could apply mr coffey same analysis to jeffrey's net worth and get a higher probability because he has a higher net worth but you could apply the exact same analysis in the same thing with mr christensen if if you applied his analysis to mr miller's he'd run out of money in ten years right so he'd never make it on mr christensen's analysis so this idea that somehow lorraine a miller has  guaranteed the sliced out for the rest of her life without any chance of her failing but then then when we say well mr miller can pay for it why wouldn't the same analysis be true for him you could take mr christensen's carve out two hundred thousand to set aside in case something really bad happened set off another two hundred thousand i forget what the rationale was even and then we're left with this amount and you invested in three percent what would mr miller senior when come be it would be need issue and the burden of proof seems to be core in this case when you consider the recent precedent and the case law clearly identifies a change in circumstances to mean an inability to pay the support order or on the other hand the recipient particularly now in the circumstances of this case when we're looking at retiring that there have to be some sewing of an in ability to pay into common situation of a much younger girl or ordinarily you are looking at a support legations dad is based on actual income earned either from employment which is the most frequent or from a business ownership and in the situation where the employment to fall off or for whatever reasons the business is lost obviously there's zero income and there is an impact and the ability to pay when however the expectation because of retirement is that we will be looking at  assets meeting accumulated assets regarding the ability to pay that is necessarily a part of the movement burden because the movement burden is to show a change in circumstances and retirement simply in and of itself does not mean a change in circumstances that affects the ability to pay and we maintain that this record simply does not reflect realistically what mr miller's ability to pay is i want to discuss  this concept of the belief that the interpretation of the existing judgment order for maintenance specifically there's language in bearnaise that talks about the importance and significance of a grant of indefinite or permanent maintenance so we would submit to just absolutely on the reasonable and reasonable to look at the judgment award in this case was which was t grant twenty one point four four percent of mr miller's gross income as maintenance to mrs miller if it is really under reasonable to say  that retirement and the loss of income from employment now meant that reno was entitle to no make that actually however is the position on which the apple each tried this case in the trial court but we would submit that that is in reasonable interpretation of the existing judgment and a reasonable inter me they haven't really suggested what a reasonable interpretation would be but we would suggest for instance that the draw so so he for instance on his financial affidavit actually indicates the sum of three thousand dollars as a maintenance  no no questions just the sestak thank you ok and i don't have any further questions so at this time we would certainly like to thank consul for your arguments the sworn ng for your participation in this oral argument the court will take the matter under advisement and render a decision in due course court will stand adjourned as to this matter we do have other oral arguments this morning and we will be  continuing to hear those that as the morning progresses so thank you very much everyone you may now all hang up thank you here anderson thank you ok thank you bye bye