your honor i'm here on behalf of david maclaughlin to ask for the relief he did not receive from the trial court which is at the very least synovate in the basement of his maintenance obligation as a result of his loss of his job his total loss of any business income and the necessity that he did pull us substantially deplete his retirement funds in order to live suspension how many years would would it take for him to bust it out well it wouldn't have taken long because he was almost busted out by the time of the hearing because at that point he didn't have any other source of income in fact he had just started up a new practice after being kicked out of his his former partnership and he had negative revenues from his practice because he had the rent another start up costs so when you forced can't bargain away the rights of the child so be supported and it's it's not unfair if either party has financial resources to support a child to be required to support the child from whatever sources in this case for example though we had a marital settlement agreement which divided approximately eight hundred thousand dollars in retirement accounts between these two people and they each agreed just part of that marital settlement agreement that they would waive any claims to the other's retirement funds so given that waiver it would be contrary to the agreement contrary to the judgment incorporated in the agreements so later ron when when the husband who has no right to be supported than the than the wife loses his job and thence needs to draw on those funds in order to support himself it's unfair for the wife of then come in and say wait a minute i want maintenance and instance she is is taking a piece of what she had already given up if you're talking about a child then deal between the parties really doesn't mean anything and it's also important to note that even if the court  child support case could consider should consider and must consider those withdrawals from a retirement account as income that doesn't necessarily mean that the court has to apply the specific guidelines the court can deviate from the guidelines in the appropriate a property settlement judgment is not modifiable the difference here is that we have the emma sais that a party parties do have a right to make agreements that the court doesn't have the right to impose on them and in this case and parties do have the right to waive maintenance and although there was not a waiver of maintenance in this case there was a waiver with respect to certain assets and in so far as that weight the waiver of any interest in those assets we would argue and i think it's pretty clear that to the extent there was a waiver of those assets there was a limitation of the right of any right to make its because by waiving but the right to those assets past present and future you waive your right to look at those assets as a supply of source of support and i think the obvious point in this case which was overlooked by the trial court or of least ignored is that here at the edge of certain point mr mclachlan's retirement account it assets were drawn down below the amount that his former wife had so at this point in time i think of the day of trial she had six hundred thousand dollars left he has two hundred thousand dollars left so they're quite she had like three times that i'm estimating the numbers are perfect but let's say three times more retirement funds and he had been out of the courts order if he withdraws for every dollar he withdraws he gives her twenty cents he takes one hundred thousand dollars he gives her twenty even though that leaves him with one hundred thousand and she still has the six hundred thousand vet that didn't make any sense at all at the very least the court should have considered their respective financial abilities equal his became less than hers it was and it was inconceivable that he should have to pay maintenance where neither of them had it any employment income his debt were fire greater than hers he had less assets and the only thing the only thing that i can think of or that the court expressed as a reason for the decision was were inconsistent findings were run even though the court found they had missed from across and didn't fall until he retired he was basically shoved out of his law practice even though the evidence was on contradicted that he wasn't earning a single net profit penny from the practice of law in after he was booted out of his to me and please tell me if i'm on these it's really on the standard of living of your client wasn't changed you seem to have the same standard of living that he had throughout the years and his ability earned was greater than this house is that correct well that's what she found out and i'll address both points first of all he was in a in a very it was a very narrow window of transition period so he loses his job he's finished with it at the end of two thousand and eight the case went to trial at the beginning of two thousand and ten so when the court says he hasn't changed his lifestyle he's in the middle of trying to deal with trying to practice law front of earlier when come trying to deal with the fact that he has a house that at that point is underwater so a big portion of his monthly expenses are so his so called lifestyle has a house that he can't do anything with because the mortgage the mortgages are greater than the house value well other than the house and the court point two clubs the organization that he  d right he was still a member of a country club and there was a private club downtown that he belonged to but there wasn't any evidence that he was spending any extraordinary amounts of money on those things and besides the point regardless of how he was spending his money it's clear they had he did not have the ability to make those expenditures other than by borrowing funds and depleting his retirement account his wife had to agree at that at some point in time after he had drawn down his retirement funds had a greater ability to live however she wanted each party has the right under the law to the same stay the same lifestyle the same standard of living and when you when you have made it's in a case the purpose of main essentially to allocate available income between the parties so that they can maintain a lifestyle to the extent that the income is not available then each party has to share in the in the deficit in this case she wasn't made to share in the deficit because she was not he was required to give her part of his retirement funds but she was not required to give him part of her retirement fund something else yes sake of argument let's assume that we feel that the modification is more appropriate  determination i'm just assuming that this experiment the percentage is twenty percent what you think is that well any of them let me just answer the question in two ways first of all terminations maintenance assuming that you're at your honour's find a terminations manus is an approach that was inappropriate was not called for but there's a halfway point there's a halfway between terminations and modification and it's abatement so the court could have said and i think it would have been the very least that would have been appropriate in this case for now you don't have to as long as you don't have any earned income you don't have to pay maintenance if you earn income or twenty percent that's fine pay or twenty percent or pay or twenty percent over a to pay their statutory interest on about one hundred forty thousand dollars so that so the this was a from the from from david mclaughlin's perspective this was a a hardship that it was it was the opposite of a gift that kept on giving so not only was the a ridge there was based in almost entirely on withdrawals from his retirement account he needed to take the money from his retirement account to pay bills so the more he took the pay bills the less he had in his retirement account for savings for future and the less he had and the more he had to pay his ex wife then you had with the a ridge of the ten percent penalty of interest running career i one hundred forty thousand dollars you have ten percent of what he's earning in addition to pay and the a rich you have twenty percent of what he's earning so he's in the position where it interestingly ironically  the court's order if he decided i'm not taking any money on my retirement account and not her name income he doesn't have to pay her a penny so it's not as if the club are saying you have to pay or ten thousand dollars a year or twenty thousand dollars a year he could have played a game of chicken with her and said i'm not taking out a penny i'm just going to sit here and i'm not going to pay my mortgage i'm not going to pay anything let all the creditors come in may and he would have had to give her a nickel so what i think so when you consider that a certainty of certainty that if he does try to act responsibly and take money out of his retirement account to avoid his home going into foreclosure to pay certain bills all he does is punish him self by doubly depleting himself he takes out the money from retirement there's a twenty percent penalty then yes to give to five thousand is twenty percent but how could we support the trial court's order of twenty percent of the money we're absolutely the m s a says no she has no right to that money so the money to cheat he had put in his retirement account up to the the initial retirement award to him is untouchable and the court's order touches it i think that it's it's it's arguable that the rest of it was untouchable because she waived any rights in any future retirement assets that cetera record i was one of which solo so so to be totally honest with you on that point at the very least the court should have made sure that its order did not claw back money they had that was totally off the table with respect to the other amounts i have two arguments during the period of time that david was setting aside retirement funds after the divorce he was paying his ex wife  hundred sixty eight thousand dollars a year in maintenance so he paid income taxes he paid one hundred sixty thousand dollars a year to her he paid bills and he put aside a few thousand forty fifty whatever it was thousand dollars a year for retirement deals for his future retirement he paid her one hundred sixty eight thousand dollars he more than paid her his fair share of his income in an annual basis so the end of two thousand a comes along he's out of a job at that point at least half of the money in the retirement account is is off the table from the n s a the other half should be off the table because during the he'd already paid his ex wife from an annual basis let's say three or four times those approximately the same amount as hers by virtue of having depleted that they had an equal financial building because he had no sources other sources of income because they had equal financial ability there's no basis in the law or logic for him to be paying her anything just because he was the one taking money out of the retirement account as opposed to her and towards course of always historically looked at the ability to pay that indeed you would normally think of a lawyer as my partner christie just law firm for years would be able to bring in more income than somebody who worked at k mart and and understand it's a tough world out there for lawyers sure you can still help me make more than minimum wage and here's my answer to that and here's my answer that one fine fine if he earns it here with a twenty percent of it i'm not saying that he shouldn't have to if you don't have baited give him twenty percent of his earnings if he earns three hundred thousand dollars give or twenty percent of that that's what was kind of played by the judge however however he with respect to their retirement accounts she had the same ability to earn and the same ability to draw that he did and that the time of trial her ability to earn and her ability to draw was three times his  potential and and to the extent that he he capitalized on their potential and believe me he wanted to capitalize on that potential more than she did i mean he's he's the guy has been a lawyer all his life and it's pretty obvious from the record that he was not happy with his circumstance i mean that's who he was he was a successful lawyer and was taken away from him so nobody wanted more to earn money than he did and certainly there's no indication that he would that he would give from retirement a hundred percent ok and ten same way the first three months and writes a hundred percent so again for the sake of argument if you have to consider that we exclude nine and ten because of his retirement what percentage of the income and zero he do you think would be appropriate negotiated and resolved on the eve of trial between each side's counsel each side had an attorney as well as mr mclachlan having also been an attorney the document itself that both people si and the document itself which defines very specifically on a nine and ten of the endings specifically talks about the provisions that each party agreed to govern should either of them com in the future to try and modify maintenance in particular of note in it is the selection of words used on the page this wasn't a typical divorce decree where someone said upon a change in circumstances someone can come in and modify under five ten rather the parties and council i agree can it actually craft language to determine how they will agree the modification to occur for a variety of reasons these people chose to do so and that's what brings us here today it's interesting to note in the wife section on page a nine there's a specific reference to different types of income that she receives there's employment income from which she can earn up to a certain level there is investment income in other words the income on the assets that she was receiving was specifically excluded from the calculation contrary in the in the agreement that was reached the contract they both signed and initial there's an ass tricks that's referenced in two separate sections that specifically governs what right and what provision there is made for mr mclaughlin the come back in and seek a modification of support and it's use the word only in there and it says and it uses the word gross income in there it doesn't use the word employment income nowhere does it reference that despite using it in the provision that deals with that's rights it doesn't say excluding pension income or excluding retirement income which is investment income it doesn't exclude return on investments in fact it doesn't exclude anything there was no presentation at trial anywhere to suggest that gross income has a definition that would exclude retirement income the case law that's out there that deals with the child support is i believe helpful to our situation in this that the court has looked at it but i'm not even certain that it's relevant to this case and that we're really just trying to enforce that the judge was just trying to enforce and if you look at a decision the contract that the two of them made between themselves and the court specifically made rule statements in her ruling that the parties are allowed to make the deal but they wish to make and it's not the court's position to come in after the fact and say you know what maybe you made a good or bad deal somehow i'm going to hope you this is the contract made now rob was made by my steam counsel mr london about you know look this is where they found themselves at the time of the hearing but what he doesn't point out that is important i think is that the judgment itself and if the prove a court considered that mr mclaughlin income at the time from employment was four hundred thousand dollars so when he was playing for one hundred sixty eight thousand dollars said because i don't have them but the so does say that they're way they've agreed on retirement then that's the end of it all that means someone's going back as part property division property division an income determination of separate provisions and i think on a consideration of what gross income is if you look above where it says property if that and you look at then where she can on page eight ten come back it's basically references different types of income it doesn't exclude the immigrant food is gross income or gross income and deposits are their money yes and they're in the fog for however long and when they retrieve them from the fund it's not income it's a return on capital not only for overriding public policy concerns to see the parents support their children and if they're receiving money from a retirement plan and neck in a the support of a child the court  determined that we're going to go that route but here we have two parties substantial assets that were divided at the time of the divorce the public policy considerations are not that's it i think there is a public pounces for house rise by by spouses i don't think that it's that it is nonexistent i think there's a public policy that's why we have made its provisions and i think that division of property and division of and consideration of income in the future seven years later is very different i don't think that return on capital is all that retirement plans are let's if we look at the at the facts of the case in this circumstance also we're looking at a situation in which subsequent to the divorce decree and in addition to having a greater percentage of his four hundred thousand left after payment of support to his wife mr mclaughlin probably out earn the four hundred thousand dollars by a million dollars during this fan time figuring their own pleadings themselves show mr mclaughlin in two thousand and one it's six hundred eleven thousand dollars as two hundred eleven thousand dollars above the four hundred that was divided there was two thousand and two five seventy in two thousand and three five ninety six and two thousand and four for sixty seven in two thousand and five five fifty two thousand and six six hundred seven thousand dollars mr mccloy and and  then he also from those funds contributed new retirement monies choosing how to invest his money obviously is his choice but this gentleman he knew money was not irish right it was not your twenty thousand houses investments i'm sorry and this is the pension money you're talking about the form thirty five thousand post decree was not in the form of an ira plus it was in the form of regular pension it was not a defined benefit plan it was i believe in the nature of a sat like a four one k plan where he could max out like forty five forty six depending on whether the i r s amount was so the money he saved in retirement after the divorce didn't come out of the four hundred here and here and twice the three times to four times that in  argument that's being argued with another million dollars plus the same as a situ receive plus the additional support that he had after paying her his financial position for seven eight years even after divorce was  horse given the ass division in this case and the court made specific known that he did in fact spent himself into poverty and then try to come in accord and make a suggestion that look at me i don't have he was still living in the same house he was still making the comparable expenditures to sue all the various clubs and organizations he chose to belong to and taking the trips and travel that he wanted to take all the way through even all the way through the data trial counsel he says the ruling in the trial court modifies a settlement agreement that was yes i i think that in ra i think that the ruling of the court would consider the gross income of the parties and she made a correct ruling in terms of making the decision that the parties can make a contract to determine what gross income is and gross income is is uniformly reviewed and if you look on the rule thirteen affidavit that attorneys help their clients fill out for purposes of all hearings and you look at what gross income is it lists pension income it lists all levels of income  trust distributions employment income dividends all of those things which are usually would be return on capital also all of those things are listed in a rule thirteen affidavit which is prepared for post to create hearings as well as pretty pretty which is the question with him at the ruling modifies i believe that would i think twenty percent is less than than the one sixty eight to four hundred i think the one sixty eight over four hundred is maybe thirty seven in the forty percent i think twenty percent order there reduces it  summer of two thousand and eight just chose not to pay anything and he also head income that he also had income from retirement plans that were divided and how much money did the court find was owed from up to  dollars or to your client today had to give up how much does a court find was do before he started taking out large sums of your retirement she believe that he said he should stay current if i pull out her order i think in two thousand and nine she did make an adjustment he would have to make the calculation based on his employment income for two thousand and seven and two thousand and eight if the court were to discount it use only employment income from from more vessel right then the question would be would you consider withdrawals he made from savings that he made after the divorce of that were divided in the divorce rate again strictly with what component of you know what it from claim an income from previously divided retirement or suddenly ok crude i didn't do a three part calculation of of exactly what that amount would be ok i'll surprise you on the only nine income and the cour consideration was there mathematical error that was made there now i think she believed that he was above them therefore no deviation was necessary well she said twenty percent of the income of seven hundred thirty one which comes out to be one forty six i believe the  and it was she allowed one sixty eight i think that she determined in the years that there should be a change because the income was in fact below the four that she used the twenty percent formula i think in the year that was above because she considered gross income to be retirement income there was no just a few things first of all councils and most of it is his argument that he started off with is an argument that is at this point the relevant v the issue as to what is gross income and what  not gross income for purposes of the agreements related to whether or not my client was entitled to a modification he was it and his justice conner's asked he was granted a modification the agreement does not in any way control what ma may have been other questions for two thousand and eight and to correct counsel mr mclaughlin paid twenty four thousand five hundred dollars he didn't pay nothing he had approximately two hundred eighty four thousand dollars in employment income twenty percent of that was fifty six thousand and change the quotes tracked at the twenty four five hundred that he paid and got the resulting a writ of approximately thirty two thousand dollars for two thousand and nine twenty percent of seven thirty one seven hundred thirty one thousand as justice connors question computes to out one hundred forty thousand and change and the court inexplicably inexplicably awarded one hundred sixty eight thousand dollars for that year even though the court's order was twenty percent up to a what retirement was rolled i think at that point he was in with right from the trust that was six six hundred ninety five thousand from schwab and thirty six thousand dollars from fidelity it computes to seven hundred thirty one thousand change one hundred percent retirement and i think that just to to emphasize the response to what justice here is this question there is no public policy in illinois which prefers a woman over a man o or a man over a woman when it comes to maintenance and each of them are should be considered equal in the eyes of the law and at such point in time when their financial resources are equal or the former wife is  better she has no right to take a percentage of the retirement funds under public policy from the husband than the husband would have from the wife so i think i've covered my points if there are no further questions i would