the next races number one two three two six four smith versus meth agenda numbered mr hamilton are you ready yes thank you your honor may it please the court i'm phil hamilton i represent joanne smith who's the appellant in this case chancery court to restrain certain transfers of property a two thousand and thirteen judge crowder in or plummeting junction which prevent parties from transfer any assets or making any changes of any nature with respect to accounts in september two thousand and thirteen to deceive and filed for divorce and then in march of two thousand and fourteen the deceiving changed the beneficiary of his ira from his spouse joined smith to his sons who are the defendants in the case in october two thousand and fourteen the parties dismissed their divorce by agreement and the preliminary injunction came to end at that time in march of twenty fifteen don smith died and his spouse discovered that the ira had been changed it seems clear under the law that the change of beneficiary was improper it was invalid at the time it was done case the order was broadly defined to cover any type of transaction i submit transaction includes a change of beneficiary the apple e suggest that now it would be maybe a sale of an asset or some kind of transfer of property the appellate court seemed concerned about this concept of a change of ownership with an ira there's no change of ownership i mean don smith owned that ira he was the owner at the time of his death the only transfer he really could have made or the only transaction would have been to change the beneficiary in the broadly worded order in the chancery case seems to entailed that there should be no changes whatsoever on any assets at all including a change of beneficiary so but that's one of the legal issues and that seems to be the appellate court was hung up on that question about is a change of beneficiary a transaction i submit that it is the transaction has a fraud in there there is plenty of  and that's a case that's an issue that seems to be if the court reverses this case should it be remanded for further proceedings on the question of did don smith do anything with that ira to gratify the prior invalid beneficiary is a transaction involving that account even though there is no transfer of ownership even there is money no money changing hands a change a beneficiary it would have made no sense in or to an order like that if someone could change the beneficiary on insurance policy or change the account in some fashion to remove an account holder obviously they think the parties intended to freeze any and all transfers at the time that they entered into the order does mean there has to be an exchange if your client i don't think the rest of many can change exchange of consideration i don't think that's what transaction meant right i'm saying if we decide that it does have to have an exchange is there then this case is for your concern i don't know why that would have been central to the injunctive order and the admonition of the parties to follow it i mean in other words if they're distant some remov an somebody from an account there's no change of hands or change of money at that point but that was something you couldn't do one of the terms of the injunctive order so no i don't think that that would mean that the the appellant loses the case at that point that there was no exchange of money because the injunctive order doesn't say anything about you know exchange of considerations as part of the issue the the defendants devote much of their brief to various allegations that were made in this chancery case the underlying case and course there's a dispute of fact and question of the relevance of those allegations they seem to ask the court that if if you're going to reverse it you go back to circuit court for additional proceedings and i tend to agree with that i mean i think this court if it reverses could find that joey and smith owns that ira but i can see that they haven't had an opportunity to present their answer in their affirmative answer is i have to concede that point maybe there's some factual issue that they can bring up that would somehow mitigate the improper change of beneficiary and i think the two issues are what were the circumstances relating to don smith's determination of who should be the beneficiary under the i to begin with i have evidence that shows that he took action to designate her as the beneficiary and i also have evidence that shows he took action to change it to a science that's not before that's not a record  presumably they would have an opportunity to to be dig into that question and then the other issue is once the divorce got dismissed prior to his death did don smith do something to ratify the prior improper act i submit the facts are going to show no but i can see that the apple he would have an opportunity to dig into that as as i must i mean this was a motion to dismiss the complaint it was a little surprising that the court actually ruled based on in the way that it did on just a strict matter of law would have made more sense to at least give the summary judgment stage but i submit that procedurally it was certainly defective to dismiss the complaint based on the issues that were  depending what the court would do at this point process and assuming that it doesn't it back to the circuit court quoted in my calculation there are four issues that could still be conclusively resolve resolved by the court at this point the one is the one that's well settled which is the injunction must be obeyed at the time that it's entered in tell us later vacated or reversed and that when the victim when the injunction comes to an end that doesn't excuse the proper or the prior improper act that's all well settled law in the court can confirm that i have been in that period after the case was dismissed and the interest was dissolved so he had the authority to change the something to it have to refile the beneficiary designation he'd have to ratify the prior improper act in some way there was a period of about five months before he died i submit the facts are going to show he never did anything but i do concede that point other factual issue that a bill or the legal issue that the court could resolve at this point is that the divorce was dismissed as too as opposed to a death ending the divorce is not to excuse the prior improper act courts seem to draw a distinction between death bringing an end to the dissolution or to the injunction as opposed to a voluntary dismissal and the dissent pointed out in her comments that there's no reason for the for  the lot of all in that direction at all that the difference between death and in the injunction and a voluntary dismissal makes no difference i mean they had to follow that injunction at it as long as it was  effect they had do that so that's the second legal issue i think the court could resolve the other legal issue which we've already touched on is that the order barred all transactions defend it suggests that the order only precluded transfers of property but the order had a very broad wording in the the new york life insurance case that was cited to the court the order neck case was very broad it said you can't transfer you can't do anything in the court found that the injunction had to be followed while it was in effect changing the beneficiary is a transaction i think the court could and should address that legal issue for purposes of possible proceedings in the circuit court and then the fourth issue that could be resolved would be that the circuit court held that once the divorce was dismissed that the change of beneficiary became effective after that date reasoning that there was nothing for don smith  confirm the change of an official but that's not correct that can't be correct if that act was invalid at the time it was done he would have had to do something to confirm the prior invalid act he could not have just stood there and said well joint smith doesn't know that i've made this change opening up yet other additional issues that might be relevant at the trial court the joint smith know that he had changed the beneficiary designation as ira we are to allege in the complaint that she did not she did not know about the change meant a fish or eat till after john smith died which she of entered into a stipulation to dismiss that divorce knowing the potential consequences of it if she had known that the change of beneficiary was in effect no she would not have done that those are all issues that the trial court might have to consider if this case goes back so we ask that the court find that joint's mr keith the ira or alternatively remande please the court mr hamilton my name is michael hertz i represent scott and jeffrey snow the sole children of donald snuff on march thirteenth two thousand and fourteen don smith named his two sons as the beneficiaries of his vanguard ira it is important and helpful to understand the facts that led up to that change in the facts that led up to this injunction being entered to understand the intent and the purpose behind that injunction on august sixth two thousand and thirteen don snuff filed for a petition for temporary restraining order against his wife he alleged in that petition that on july twenty one two thousand and thirteen he was admitted to the hospital during the time period he was in the hospital for two weeks that she was forging his signature to withdraw funds from his accounts that she withdrew an excess of one hundred thirty four thousand dollars from his u s bank and regions accounts between july two thousand and two and august to two thousand and thirteen and those funds were deposited into her single named account now while he doesn't mention this vanguard account i take it he probably didn't know that something had happened on the vanguard account but it's around this same time on july thirty first two thousand and thirteen that mrs smith's name was added as the beneficiary on the band on the vanguard  account while he was in the hospital the confirmation of the account change was addressed to mr smith at his residence he was not at his residence at that time when he got out of the hospital he alleged in his petition that his wife had died him access to the residence had denied him access to his financial papers so them on and further then on august fifth two thousand and thirteen that she attempted to what date his scottrade brokerage accounts by providing an invalid power of attorney ordering scottrade to liquidate the accounts and remit all of the funds to her so then on august sixth he and so the order stated at that time or what he asked was to maintain the status quo directing the banks credit unions and scottrade to return the funds and prevent his wife from further converting his assets  preliminary injunction was entered on august eighth two thousand and thirteen which provided that any and all funds withdrawn from the church that there is there's an issue as to whether this is change the beneficiary on the vendor that has not been litigated yet if there's a goal or implied yes it happened at the same time that all that she was that he claimed that she was forging his signature and withdrawing his funds from all of these other accounts during the exact same time period and prior to her getting her name on the vanguard account there was no beneficiary designated on the vanguard account wasn't the purpose of the injunction though to maintain the status to maintain the status quo to prohibit the parties from further dissipating these marital assets and he did nothing to dissipate any any assets while the injunction was in place he engaged in what i would call a state planning by designating his son's as then a fish areas on on this account presumably after he think transactions by itself is a is a kind of a broad term it could potentially apply it's a everything else that's explicitly listed in the injunction were talks about transfers by orders sell orders with drawls deposits so i think certainly if you read it within that context we're talking about you know transfers and taking money out of the account not talking about a state planning  but certainly there was no exchange that took place between mr saltus sons while that injunction was in  place on october twenty ninth so there was a divorce that case that was pending for about a year and then at the end of the divorce on october twenty ninth two thousand and fourteen and this is where this ders as to the financial accounts of the parties were dismissed and withdrawn and so this isn't you know my mr hamilton alludes in his brief that you know work claiming  to you know this is they were withdrawn and that some kind of in a legal term that i'm making up out of nowhere it's in the order they expressed so expressly wrote in there that those prior orders were dismissed and withdrawn by the october twenty ninth two thousand and fourteen order then a period of five months the lapses between that order being honored and mr smith's death on march thirtieth two thousand  fifteen vanguard had processed that change or beneficiary they make reference that you know it didn't comply with the account agreement they processed the beneficiary change they show scott and jeffrey snow as the beneficiaries of that ira so it complied with the vanguard account agreements  question when it was expressly dismissed and withdrawn that there was no prohibition from mr smith naming his sons as the beneficiary there's nothing in the law there's nothing in the account agreement that says that he had to do that a second time there was no transfer that took place when he did it's and so for those reasons we asked the court to affirm thank you rebuttal defendants again and well in their argument on these disputed allegations that were made in the chancery case court did not consider that in making its decision in this in the on the motion to dismiss courts never gotten into those issues as to whether they're really relevant anyway it's hard to see how some activity with respect to let's say a scottrade account would have some bearing on whether or not the parties but here to an injunction is to this vanguard ira difficult to say why any of that stuff would be pertinent there are number of of items of parties of cited two that are not in the record one of those is don smith telephone call the vanguard in which this took place on march thirteenth two thousand and fourteen he says i want to change the beneficiary i designate my wife joanne f smith i want to change it to my son's we've been through a divorce but he specific about  saying i don smith designated my wife joanne f smith so the issue that they try to raise relative to whether joanne smith had some role in getting herself selected as the beneficiary of the ira there's no factual issue to support that she was don smith took action on his own on july thirty first twenty fourteen to name joanne smith as the name beneficiary on that ira and for reasons which will never really be known he changed it during the at the divorce while there was an injunction in effect the purpose of the injunction as noted a moment ago was to preserve the status quo as to all assets that was the purpose of the injunction preserve the status quo changing the beneficiary on an ira is is changing the status quo the it seems clear that whether there was any consideration of volved is irrelevant they were they weren't supposed to do anything with the accounts at all now without leave of court and in fact in the case that they did at one point seek leave of court to approve a distribution from the ira for required minimum distribution in the court they s permission of the court to make it required minimum distribution from the ira so there's no reason to think that that situation is somehow different than change in beneficial of the ira the  and then i'm surprised we're still hearing about this on an appellate argument but the dismissal of the divorce case did not result in vacating all of the prior orders including the injunction or that's not what it dismissal of the divorce terminated the divorce the injunction ended but it did not in any sense vacate the court's prior workers that would have made no sense the injunction was effective from the two three two six four smith versus fifth would be taken under advisement as agenda number two mr hamilton mr hersh we thank you for your arguments this morning yo