two hundred thousand dollars first of all with regard to mr roco he didn't even give an opinion he gave an estimate of fair market value what's the difference between the estimate value versus the market value what what how do you come to that in this sort of program it's one or a yacht up there or the two methodology is one using the cost market value because he conceded that he didn't use capitals which is part of the methodology it's the same thing as if you had a real estate appraisal and you didn't want to use income you didn't want to do use cost and any can value in a range and i am familiar with all those cases but there is no evidence of two hundred forty thousand there is evidence of less there's evidence of two hundred there is evidence even from m thousand dollar basis in the record you know that's my position and further at least not to the court as i understand it to you get two competing experts here he's not required to basis for it i mean he did essential in this regard the mr merkel's although you know he makes the statements and there he excuses them a bit saying well it would take too much thousands of dollars if i did that when he went i don't know he went through supposedly went through the time to look at all of these he looked at the files different right so if you looked at a thousand different items i guess was paid for there he could have done you know completed his work missoni all conceded he didn't finish the job because he says i can't tell you this is fair market value it would get thrown out but then the judge takes and says i that both of these but i don't think this is what anybody would buy it for and i'm going to put a label on i want to i think it's going to be part for exactly he used his own way of saying well this is a fair profit but  there was no basis for the two hundred forty thousand that's what i'm saying and i'm also saying that mr merkel's should have been totally disregarded he should have been barred based on number one the fact that he admitted he didn't use the right methodology he didn't even give does with any expert just as i normally do agree with you and that's the general rule but it is the cases that i've cited point out in terms of whether or not it's competent there is a degree there's a line that has to be crossed and when you not trying to go against your client but i'm saying what you're opposing counsel has indicated then the other side should also be tossed out because there's really no basis for most of his because of what they're based that so then we got to who were strong both he well he can complain about that i don't think he moved to borrow and he didn't cross appeal or or any of those things and i think that i did  deficiencies that your runner did raise and that mr london did that he did you can use cost you can use purchase price and that was established and essentially it was uncontroversial so you have the two hundred forty thousand dollar figure the trial court says we're going to use this methodology and then they come up with two hundred forty thousand it just doesn't add up as far as i'm concerned were guarding the cache of j c j that it's fairly simple the original number was thirty six thousand dollars which admittedly was at the time our expert mr miranda did do his report i were ever subsequent to that time it down i believe that he asked him i should have been the more recent fifty three hundred or so with the statute what do you say to the argument that they had the judge had to choose a period or a specific time well the judge has to do that but the statute says you feel us that this close to the date is practicable and i understand we're not you valuing the whole business or the inventory or doing that again i understand there has to be some leg back but this is the simplest possible but i believe you know consistent with the statute you shouldn't use the figure five thousand it was in evidence were guarding the death of j c j as well the judge allowed certain death if somebody five thousand dollars they were supported by notes in the others he said well they are not supported by notes so i'm not going to consider them even though there was not only testimony it minutely not a lot of testimony but some testimony and also more importantly there were not the trial court determined there was no documentation for the the amount one hundred twenty five hundred thirty five thousand the loud eighty five thousand graph but he indicated that certainly was not reported on the books of the of the corporation and could find no notes table right that's why he did it he said he said and i'm saying notwithstanding notes are not required they were in the corporate tax returns in there were  wires and deposits set in and they were explained by testimony so again the court chose to ignore the evidence which i believe was against the manifest weight an abuse of discretion therefore we maintain proper value j c j was the inventory of two hundred thousand the cash of fifty three twenty five less the liabilities of one hundred thirty five thousand there's also six thousand accounts payable report for a value of sixty four thousand three hundred twenty five dollars with respect to the second item which is the income for richard yeah this is fairly well west in the indicated is too stale five years would have been much more reasonable six years ahead has no relationship with what was going on not only in terms of time but also when you look at the used it and when he did exactly which is what i maintain number one was an abuse of discretion he should have been consistent if he's going to enrich let's average but what he did instead weatherly was sort of pick and choose he said well w the trade although use the six year is which i maintain was that the other business was relatively new and i think that was the distinction he was arrested that is what he said oh though that was standing there when you look at all the records of business actually started in two thousand so if you look at the chart three years later he's still losing money he had two thousand and two he made seven thousand the next year he lost eighteen thousand and then all of the trial court characterized i mean technically you look at it it's true then it didn't increase he says it consistently increased every year except the year it did which of course is a loss year for personal expenses the allegation is that here are a closing argument for written you admitted that the figure was more akin to ten to twenty thousand  mean you know you have to look at first of all there were tax returns for the prior years which again were signed off by by mrs yale's father and there's no doubt as to those figures and she's not saying these are real or new and now when you look at these numbers again if i could continue i mean ninety thousand in two thousand and four nineteen thousand in two thousand and five forty three thousand in two thousand and six so yes going up but not going up great degree and then you hear one hundred seventy four thousand in two thousand and seven which the court said ok we're going to use that well one problem with it of course is that there was evidence that it was done and to rid of it as you give you account in coming and saying that two thousand and seven was artificially high because of the balance sheet of just problems before so that was an unusual year so if you're going to take that take it with the others is an error don't just say well this one that we're going to take that you know we're going to take a test figure and granted the trial court certainly within his rights to say well i don't believe it was ten thousand we're going to say ten percent so fine if you accept the ten percent justices it still doesn't add up to him making three hundred fifty thousand dollars a year every year for the purpose of support invest ultimately where we have the problem it just doesn't add up if you can play with the figures as the trial court did but it's not consistent you're taking one year well i don't take it why don't we take is one better tray i mean if we're going to average but we're going to everett including that we're here we're going to thousand dollars and the problem is that rides the bus the rest of the way because all those other rulings get to be well it's three hundred fifty thousand dollars a year so let's let's give her sixty percent let's have him pay most of these fees let's ten years support all these other things so it's it's a very important thing and again there's not any evidence per se that he ever made three hundred fifty thousand dollars in one year my third point has to do with this  fees all of this were counted against him it's an additional thirty five thousand in this a patient claim and none of them were counted against her which again skewed the yes to distribute listen better indication that i mean what the argument is because it was an offer that when she died but it was also used to skew everything else it was used as a factor it was used to give her the sixty percent and it was used to give him all that instead of sixty percent or stated another way if you're going to give her sixty percent of the net perilous state you should give her sixty percent of the assets less sixty percent of the liabilities instead he got sixty percent of the feel right ability he got all the other liabilities including i r s and all these other things when they were all incurred during the marriage so the court basically said well i'm not going to apply it this way but i'm going to fight this way which is why i argue that it's just as damaging to him it's obviously a  significant ruling it seems a pity court was somewhat handicapped and terminating whether these expenses these expenditures were truly family expenses funds were coming  to your client freely with through cash as he chose to and then as the court characterized it there was a paper dump of  unusual case because most of the this patient cases are where the fellow comes in and just as well i paid bills and no documentation no doc or here we have documentation granted we're at the trial counsel which i was n i might have had him say some other thing this in terms of documentation to support the exhibit i play it a walk through it and all that but it doesn't mean that it's not in the record and you start with you know a couple i'm sorry i thought that normally normally it couldn't be considered the dissipate tell the petition it's that's it's often the case i mean it has to be in the process of breaking down so you have to look at it factually but a lot of the cases  separation they look at the filing and in this case it is true that this liquidation happened three months before the divorce was filed a month before they even separated and it can't be looked at it just this is you know  because this was a fellow we know his income for actuated every year everybody recognized they had twenty zero six was a terrible terrible year he made forty three thousand with j c j which was up till then the best  year for j c j but it was two hundred forty thousand dollars trade and that's an rebuff nobody said he did so he hit they had this lifestyle yet to come up with the money somewhere so clearly you know he liquidated his life and he paid these broken if we're going to to counseling and then on top of that the court uses you know says these checks are dissipation of early counseling checks not to mention you know checks for j c j checks for you know inventory importantly made the error in terms of not only their date for the reasons i told you but remember we have that balance back the court said well we're going to use this they participated and this check was written before so it can't be but when you look at the evidence you see you know he was doing one thing than doing another but the check balance so the check actually came in after and that was to his trading company which the court had allowed all the other checks so certainly hit the port you know looked at the proper analysis there  checks so they had to agree those they had up to i think fifty eight thousand so this chaotic that this is a patient or this a patient with one hundred twenty five thousand and then the additional thirty five thousand feet so half of the original this is a patient is on those two check  illustrated why any are treated by the courts and i don't think that there was any error is was not reversible error it was not prejudicial customarily standard operating procedure in these  fifty nine and if we're dividing everything sixty forty we now have to give mrs yale sufficiently assets so that she's compensated for that hundred fifty nine and what about the whole you know consomme makes me with questions about the two bounced checks and where the judge chose his time it seemed it seemed like early like he went back before he really should have like they're still going to counseling and i know there's cases that say that but it seems like he's just early on and where he drew the line well i think a couple of answers to that first of all there is not necessarily latest as of early two thousand and six and so given that this is a manifest weight case discretion those are the standards of review there is sufficient evidence in this record to support a conclusion that the marriage she had either broken down or at the very least and this is uncontroverted was undergoing a breakdown as of early two thousand and six at the latest and even earlier and since this since the legal standard to be applied as set forth by the supreme court in o'neil and very recently within the last year or so interpreted in the whole house case being within the timeframe that the law says is the timeframe for this patient so i think that's the best answer i can give trying to question and and interestingly and ironically relating to the issue of prejudice when both sides were asked by the judge to have proposed cash the balance spreadsheets and they both bid to take the judge's judgment and translate it into a balance sheet so that assumed that the hundred fifty nine thousand dollars would be a balance sheet item and mr yale's own proposed cash the balance had him pain deborah sixty five thousand dollars well the judge would defend said no no no i'm not that's not what i want i want get off the balance sheet and the resulting order that the judge answered in april of two thousand and nine was that mrs dale oh mr yale thirty thousand dollars to cash the balance before attorney's fees so in essence there was one hundred thousand dollars swing here that the judge done what drugs typically do regarding this a patient mrs yale would have been one hundred thousand dollars to the battle in essence mr yale it was like he was found to rob the bank but was let off with supervision and no restitution now i'm sure the courts considered the issue a patient along with a whole myriad of other factors that the court was required to consider under section five all three and dividing the assets in allocating to that including their income potential their health a ration of the marriage  of these other factors and at this the patients just one of the very many factors and it's clear that the courts that that the public has not shown clearly at the court over emphasized that factor of the fact was the overriding factor all the other factors that the court considered supported a disproportionate the vision of the assets in favor of that or in this case and that's not even to say that the that the court's decision erroneous the judge recognized that some of the expenditures made by mr hale may have been for for marital purposes acknowledge the possibility however the court correctly said under the law it is not for me and i think counsel on appeal has done a as he has a noble effort to try to do what is mr gale his trial counsel should have done which is to offer some explanation but counsel's arguments in very very high burden and just giving the judges the pieces the dress the pieces of the jigsaw puzzle and saying look i'm not going to give you the picture i'm not going to tell you what it looks like when it's all put together some of the pieces may look like they fit together and they do maybe you don't you put  adhere to their burden of proof and to give fit trials but both the courtesy of explaining why did structure come to a certain result as well as meeting his or her application under the law for burden of proof and that wasn't done here a fail to meet the burden of proof and b no harm no foul and that's not prejudice and i think you have to show prejudice on appeal it has to be clearly prejudice you can't just i think throw the argument that we are prejudice shouldn't have done what mr yellow asked him to do so we have now have a full of a lot about the inconsistency between the trading and j c j well those are apples and oranges the judge had the right to treat the apples the apple differently from the orange the judge did exactly what mr yale asked him to do with respect to the trading at the j c j was a different animal and when we look at it we look at j c jay point out a couple of important things first of all the judge found as supported by the court for tax return that as well as mr yells thirteen point three financial statement which i think was in the record as exhibit four that j c jason comfort two thousand and seven was one hundred seventy four thousand dollars and change there is some argument thousand dollars in distributions in two thousand and seven and there were there was thirty five thousand dollars left in the bank for that year or you have the two together and you have one hundred eighty one thousand dollars which is consistent with one hundred seventy four thousand dollars we also know it was just this woman asked and this that that in addition to that they had their worst fifty thousand dollars in checks written to cash that mr  took now that was not over the years that was for two thousand and seven and that's what the record says so there's fifty fifty thousand that he says he used it to pay the framer and it was two thousand dollars a job and matter what the job was was for one friend and frames whatever two thousand dollars but remember the framers namely that the only with him for six years and the answer is well it was a common last name so there's fifty thousand dollars a month in unst account for payments which could have been had to dissipate because it's fifty thousand dollars in cash which also further supports this patient his counsel helping state so that he takes ten to twenty thousand dollars a year at trial he said ten thousand dollars a year and under reported cash and i think is it's not unreasonable to assume as a trial judge that that if he was admitting to that ten to twenty thousand dollars between him and his counsel the truth was probably somewhere north of there we he also testified that he paid personal to what extent he under reported his income from face each day there were hundreds of thousands of dollars in the past that into his personal accounts and comingle from one account to the other and there's no way to know exactly you know exactly how much he got all these other things i'm going with zoom that it was his income was no less than a hundred ninety one thousand i think that was the number from j c j because you add up what he admits to taking plus the cash plus all these other things i think mr  questions pointed out that the two hundred thousand dollars number with respect to inventory which is a very important component of the valuation of j c j whether you're using this overall fair market value pay what exactly what you can sell it for because there's no profit in that i'm not sure i agree with that but that's what the judge found so if you if you accept the judge's methodology and the judge has the discretion and analyzing the expert testimony to come up with an approach that is reasonable under all the circumstances so the best number he had actually was right that expires what these items could sell for was between one hundred three hundred forty four thousand and five few items he had a price tag or retail value and that's and that was his five eight but then he determined that that was too high he figured well what could it recently sell for the three forty four and the the forty four wasn't just what it could sell for out the front door it as store mr jail testified that he was selling his product in a number of ways he was selling it you know benefits he was headed to a restaurant see he would go to shows he would it wasn't just off the front door straight retail and the three forty four is the number that merkel who is the only person in this case he cites richard yale who knew anything about what the stuff was worth he was the only person to go through and say this is what they could sell for if you took a reasonable amount of time it was three forty three and change the just discount if you had by a hundred thousand dollars i think it is more than a fair profit on the two forty so if somebody could set it if you could reasonably sell it for three hundred forty just gave like a forty percent profit i think that is a very reasonable decision that really where a court an appellate court shouldn't say it was an abuse of discretion and the other hand is two hundred thousand dollars was nothing more than richard saying that's what it was that based on a list which richard created in may of two thousand and seven it was only us and it was not substantiated each item was not substantiated by cost best it is not with the records after mabel sat now mr merkel in february of zero eight went through every single item and listed it so we don't even know if the items that richard had said existed  knows you could pick any given month and a calf would be up or down the cash might be up there at the end in january after you've had a big christmas season he had a stormwater collar we don't know the  it was broken down sometime very big early in two thousand and six but the question before that which i think is more telling and i have it on page fifteen of my brief she was asked when the marriage broke down and she set i don't have a specific date so then when she follows that up with with something vague and then it's contrary to evidence that we have the parties are still living together the parties are going to counseling at the time thirty five thousand dollar aspect of it having to do with the misreading of the statute regarding what we do with attorneys that we alternately says you know burden of proof which i talked about in this  justice is that's why it's very important because this is a patient i find of the very best in aiding legal doctrine i mean essentially all party guests do is say he dissipated this amount and then magically a burden shifts to him a burden of clear and convincing evidence which we don't see all that often in civil war up it's very interesting all the more important ben let's get it right in terms of the date i mean a lot of these cases again that we've seen have to do with there's a case on file the parties are separated the fellow goes to vegas there are no documents i only give seen anything or any court of review has seen anything quite like this where the parties are still living together parenting together sort of joint parenting agreements going to counseling doing all these things and she by virtue of saying he dissipated now he's put on this clear and convincing track i don't think it's fair i don't agree again with mr london saying no harm no foul because the court himself when he's going through all his detail lists the fact of the dissipation is one of his factors in giving my client all the debt which i think was over one hundred  fifty thousand probably on one hundred fifty nine thousand or so so that's where it was so it wasn't a balance sheet item but it was the same thing he says will give him all of his debt if the same thing exactly the same thing is if he had been charged with eviction regarding the income i respectfully disagree with counsel as to what are apples and what are oranges i think we have read the same person it's the same kind of situation where he's up and down obviously one of these jobs isn't enough to support the family because he's been doing both of these for a number of years so i think when you split methodologies like this and particularly in the way that it was done to get him well he asked for he said you know whether or not this was misguided or not whether or not supported by the case right he says ok we've got an interesting situation here what do we do i said well well after six years which  probably council's way of being candid saying hey we did have a good year here let's put this all in and head to trial court than that ever it's all source for six years we're only going to have the problem but when you ever and then take the one artificially good year that's where it gets you if it's the problem with respect to the the value issue you know part of the problem is