please the core purpose of my name is tom drysdale and i am here today on behalf of helen mary teller my time before the court today i will establish that the decision of the trial judge regarding the division of property in this case was against a manifest way to be evidence for some reasons but today i really like to focus on the harris issue that the reason our brief because it affects the entire distribution of property as we laid out in our brief trial judge failed to take into account that harris over a million dollars that the petition would receive when dividing the marital property and he did so because the petitioner willingly failed to inheritance prior to the initial hearing and failed to disclose the inheritance during the motion to reconsider as well and this failure to disclose evidence in the record in two ways first question since the time of this proceeding your momma's house answer that's correct question did she have a will answer i suppose question well you know she has will don't you answer i don't know question the will has been filed for probate answer my older brothers and sisters of the executors that's all i know so i'd like to stop right there in one breath the petitioner tries to claim that he doesn't know if there's a will he knows his mother's that doesn't know his will in the very next breath he says my brothers and sisters of the executor of the will and then he tries to say that's all i know so there's a problem number one he makes a statement that he doesn't know the will and then goes on to tell us well i know wh the executors that that's the first showing in the record right there that he knew that this will was in place that the probate proceedings started because he knew who the executors for but then the record goes on to show that he knows even more once it has to be dragged out of it and it says question who are they using as an attorney to handle the will answer i think it's none of your business the court answer the question mr heller answer david overstock so he starts off by saying  don't know if there's a will that he says well i know that i know who the executors are then he says well i know who is handling the probate proceedings more and more is it gets drug out of him the testimony showing that he did know these probably proceedings were going on and he even told that they were going on at the time of the initial hearing on this dissolution and should disclose that information and once these two pieces of information are drug out of the petitioner completely shuts down on any question or guarding this topic question as an inventory and file i don't know you stand to inherit roughly one third of that state isn't that true you know it's not true that's true how much do you stand to inherit i don't know you do it expecting parents don't you don't know and so the petitioner expects the court to believe that he can tell you who will executors are and then he knows who is handling the will nothing about whether he's receiving an inheritance at all and that claim to simply isn't supported by the record because the record indicates developed at the trial that in two thousand and eleven his mom gave him thirteen thousand dollars all and then he avoided questions about how much she had given him in subsequent years by stating oh i don't know and oh i don't recall so he clearly is going through great lengths to avoid any questions about money that is mother had given him or what he would receive by way of inheritance and most importantly as pointed out in the motion to reconsider the records of the circuit court of holes county indicated that the notices for these probate proceedings have been file going to be named as an heir he's put on notice of petition for entry of probate of this will is being filed he's on notice of all the spaghetti sits up during the hearing and he says i don't know if there is a will well i do know who the executors are and i do know  handling well i don't know if i'm getting any hair this despite the fact that this case has already been put into probate at the time hearing these are clearly misstatements willing misstatements five additional based on the polls county records and raise some of the things at the motion to reconsider at the at the time the motion to reconsider at the time that it was presented to the trial judge we had gathered at that point based on the testimony provided by the to shirk during the dissolution hearing we gathered the colby proceedings and we have presented them to the trial judge and sold the prior record i don't believe they are in the record your honor but i know that during based on what was presented to us by our client we attempted to elicit the testimony from the petitioner as to what his involvement was in the probate estate and what he knew what was his ropers your i i'm sorry i don't know the information specifically then it's the petitioners duty to disclose this information they have an ongoing duty to supplement their discovery and while we may have been able to do that search that doesn't disk excuse or discovery to supplement says that once i start getting notice of substantial non marital assets that are coming in that need to be taken into account to determine the party's overall economic circumstances those have to be  know this how can we consider something that's not in the record in the greek there is mention made as dollar value of the estate and of also that there was an approval of oh oh oh oh the to he was presented with all this information and in his ruling on the motion to reconsider the trial judge really didn't consider any of this he just simply addressed the issue of whether or not judicial notice can be taken and then moved on to address the other issues so the trial judge you know fail to even take into account the arguments that he made here regarding the fact that there is a substantial non marital asset here that's not being disclosed that they would if they knew of that they considered by the trial judge when looking at marital and non marital property in determining the overall economic circumstances of the parties when it's dividing property and determining whether or not to shirk the respondent in this case and title m maintenance and there was no wait and sort of at that point based there was no permanent mate it's order based on the division of the property that the trial judge made him and then we're going to meet the statute the trial judge looked at the economic circumstances of the party and determined that well i'm ok with the property division that's been done here and therefore we don't need to order me but had the trial were considered that significant non marital asset that should have been presented to him it and the trial judge very well may said well now i look at the economic circumstances of the parties maybe mate and says appropriate here and so it goes back to my original statement that the failure to disclose and consider this very very significant  asset really affects the entire judgment of the solution because it affects the maintenance and it affects the property should stay and we cite to the smith case in our brief and i think the smith case  exactly what we're presenting to this court and as the smith noted the or considers the relevant economic circumstances of the parties supposing property and the smith went on to specifically state that the requires the court to consider on marital property even where the non marital property to be received in the future and that case specifically dealt with the wife trying to argue to the court then you can consider my non marital asset of the inheritance that i'm more into received from my mother because that inheritance is currently tied up and probate proceedings and we don't know what's going to happen to that area and the trial court refused to accept that and now  circumstances when one party fails to say hey there is a probate proceeding open and i'm going to be getting substantial sum of money in that probate proceed or a substantial sum of  evidence and they try to shift that duty over to us and say well you should but but that's not our job our it's not our responsibility to produce evidence that is in their possession and control it's being male he signing off and it's you know to to argue that it's our responsibility to produce this when as we pointed out in our brief come time for the motion to reconsider the state actually at that time had been resolved we do our line of question at the hearing nothing made the probate works excessive all to us however nothing also made the file less accessible that they they have the duty to this lady named killer would have revealed work was what well your are which is what you did for purposes of the theory going to petition to reconsider your honor we simply knew that the petitioners mother had passed away we gathered information by begin your honor respectfully we didn't know that there was a colby file we simply knew that she passed away and that's why we started asking questions of the hearing was there a will to which he denied and then he came back and started telling us not only is there a will but there's probably a proceeding going on we learned that information from mr keller at the hearing which is why we presented the new information we gathered to the trial judge at the motion to reconsider and so at the very least the trial will in listening to respondents council's argument that seems to be the problem with every issue that's raised in their brief is that there wasn't enough of this prepared or there wasn't enough of this done there wasn't the accurate the adequate documentation whether it be the property down by the river or disability or otherwise there's not enough information is presented or any at all to support any of the findings that they are asking this court to reverse  trial court he inherited the situation is interesting because after we actually there was a deposition it was scheduled of the parties around the time that mr keller's mother passed a deposition was cancelled by agreement and  after her death the deposition is taken there is not one question raised by counsel for respondent in the deposition of mr keller had anything to do with inheritance at all well prior to that hadn't been a disclosure i made or plaiting well from what we've heard from counsel today apparently they received information from their client that led them to be able to ask those questions of the time of trial well president you said i have a deposition and that's what i'd like you to focus on at the time  any probate parents the like of the time hearing before the hearing which are a notice of bottles to be candid with your honor i don't recall that specific request being made it's not part of the record if such a request was made then that would have a son notice but let's take a look at what in the grand scheme of things is going on also right there yes it's your representation you don't recall there being request for information about to turn to inheritance i don't recall specific ok i'm not saying it's not there i just don't recall it ok but it goes back to the grand argument being made that whatever the issue is that the trial court did not take into account this this or this when they had the ability to corral that information whether it be with regard to the respondents disability with regard to the respondents capabilities as far as work goes for the determination of maintenance or the evaluation of maintenance with regard to this property that they claim was not distributed with regard to this fifteen thousand dollars that they're trying to pull back out of the marital  state as non marital contribution all of these things exist within either the purview or scope or control of the respondent or the ability to go get certainly the records of the circuit clerk as far as almost every probate matter none of those things are sealed and if you look at what it is that they're claiming my client knew at the time there wasn't anything that they presented all they would have to a done was look out one flight of stairs and go into the circuit courts office and get it if it's a matter of there are some steps to its credibility whether it be the value of the estate or otherwise or who would counsel was wrong but the only thing that looks as if had been done in the estate was the filing of the titian or i just looked at it this morning and it looks from a chronological standpoint that that may have been the case was there a motion i was no part of that was there a motion to reopen groups on no notice nor was there any to a one case letter if there wasn't fact request of your honor asked about inheritance or was no to a one k letter there was no motion as far as that goes to compel there was no collection for purposes of submitting a request for admission of fact none of those things were done so this could not have been very high up on the radar of the respondent if we're not even following through and doing that we're not even follow through in getting documents from the circuit courts office one floor below the court room where we were located trying this case so when you're at this case and what it is that they're requesting by way of relief it's more important i think to look at not only that but also the fact that there is a myriad of proof that to even give the judge a shot at considering an issue go good find it and they didn't and that's the problem is that there was not an effort made to undertake these things to establish the veracity of her claim for disability or  the extent of the property or the documents associated with this fifteen thousand dollars that they now want that none of those things were undertaken and that is certainly not a matter of it being if you're if you're the proponent of the proposition in court i was always told you better have what you need by way of documents to back up your submission of that proposition to the court and that was just lacking here and i think that judge will prions opinion that i think  was very well reasoned basically stands for that proposition there were things here that they failed to bring to the court's attention on matters now that they're complaining about some error having been committed by judge of crime and we think that this was a very well reason to answer your question judge about the balance of the state it was fifty five forty five sensually the respondent was receiving fifty five percent so it was it was obviously very well reasoned for the court to have come to that conclusion supported by cases already just briefly your honour's basically what they're trying to say to this court is we have documents in our possession that are relative and probative to how this marital status should be distributed we're going to hire them we're not going to give them to you and good luck going out there and finding them on your own to present them to the trial judge the trial judge to make a proper determination one of the hard the duty on us to go find all of the documents that are covered in our document production requests that's not the point of discovery well then your documentary chorus you do it has or the mother's will of well we have them sitting on a table at our house go find them on your own that's not what discovery is designed to do or honor and the petitioner says it was a fifty five forty five split that's fair well that may have been true regarding what the trial court had a product that may have been true if we take out the substantial non marital asset that needs to be considered so it might have been fair at the time but with all the information that the ocean to reconsider the fact that we raise new evidence in the motion to reconsider that was either concealed by them or not known at the time and we presented those arguments to the trial judge and basically what the trial judge did was simply say