marriage case in justices of like to focus in on primary aspects of the out which resulted in the trial court iranis lee ordering sixty six hundred dollars a month child support which comes to a little over seventy nine thousand dollars a year michael is we know is a w two employee he's not self employed he's not only employed he's not a person who doesn't  court didn't handle the cynic when none of a child support case which is to determine his net income it's from the at the term a nation that everything else follows because we have the guidelines the guidelines then either apply or they do not when you deal with in the sest the statutory factors five zero five eight one says the court shall mandatory determine the minimum amount of support by using the guidelines and so forth and also it's in the case law the coronas case which i cited that the court must determine as a prerequisite for net income also since there's a modification in this case the court has to find a substantial the i don't believe there was justice either as to the expenses which i'll get to in a bit unless you want to handle it now or the income of the gentleman is income and we have the evidence of it historically he was earning somewhere in the two to three hundred thousand dollar range he did have the one year in twenty zero seven of like think six twenty four something like that but keep in mind that was the year he switched jobs he had a rollover he had a signing bonus he had the two employers paying so that wasn't really reflective of anything when you look at the other years i mean it was essentially two to three hundred in that ballpark and that's what  no change in incomings that one year that year he had his in his income did go up but that was taken into account in the two thousand and five order because remember there was a child support of about twenty six hundred dollars a month a couple  dollars off plus up senate job his bonus was the change in the need to feel i don't believe there was a change in the reasonable needs as we go through this because i think that the main increase was this irish dancing which of course was a large issue in the case that's a seventeen thousand dollar a year expense and the import of the ruling bumping the income up from twenty six hundred plus the bonus to sixty six hundred a month eighty thousand a year is all over and then castle you agree probably that if this is the he has as he will increase they generally do certainly but i don't think there was substantial i think we showed in the record that if you take out the irish dancing essentially the increase is about one hundred seventy dollars a month which isn't that substantial keep in mind justice better my client under other orders is already paying him and he's paying half of private school he's paying half of uncovered medical he's paying a number of other things irrespective of that so even if those if those go up then increases his obligation as well but there really wasn't anything any reason to go again from this amount and even with the bonus maximized as we head in there he was paying about paying about fifty three thousand dollars a year child support now were it eighty thousand a year so when she found out this and october zero seven that year his and com was approximately adjusted with the bonuses and everything like six hundred some thousand dollars it was something along those lines a lot more for that year in the year before and the year before that so  career but his income was back down at the time of the trial keep in mind the case was tried in two thousand and nine the decision came out in two thousand and ten and by then it is two thousand and eight income was back down in the three hundred thousand neighborhood nowhere near the six hundred thousand and the court didn't but our problem is to get back to it if i may the court didn't find what his income was more complicated than that appeared in court ever he did some math and said well yeah this court could have been coming hours but the problem is again there is absolutely no indication in the record that the court did that and there is a separate analysis that has to be done when first of all the court has to indicate why it should income average which it didn't do and as i indicated in the brief and as i stated before they it's usually done in a case where we don't head out of you know a set w two employees we have somebody who self employed who manipulates income who is unemployed we have to find another way to do it but the point of the cases that allow the incoming average ng say well the point of it is we can help determine what prospective income is well the rich we use the history to say this is probably what he's going to make there is nothing in the record to indicate that he's going to make anything close to six hundred thousand dollars and then when you use a three year average and one of the years is six hundred obviously they had skews the average up from two to three hundred thousand to whatever they said four hundred fifty thousand dollars but again there's no way to determine excuse me whether the statute was complied with because the court didn't say well we're going to average and here's what it is and here's what a guideline would be and we're either going to apply it or we're not going to apply it and tell you what they didn't do that i mean it's clever briefing by counsel to say well yeah income averaging you gets to about the same number but you don't get there in the right way it's not proper method either way whether your income the average or not you still have to under the statute the term in his income so the trial court also in determining the income would be inappropriate consider options stock options as an example i don't believe it would be an appropriate justice not something which is easy sometimes they are and sometimes they aren't but whether they are or not and my client testified that these particular options were under water as well but  in the briefing i believe as the options in any way to get to these particular numbers and again the court didn't determine one way or the other court didn't say well as w two income is x his options are why is this and that is is but that's right we're not really at issue as to what terminations or what aspects of his income existed but again no income no finding the court said in effect there was insufficient evidence of the income which of course was not the case everything was brought in there was testimony there were documents and again that's not a sufficient reason it was clearly yes retain of all the statute that the court used you know this is important in five zero five eight five there are a couple of provisions number one that it says of the net income if i can quote it it's in the appendix cannot be determined because of the fourth or any other reason the court chel order support in an amount considered reasonable in the particular case that appears to be what the court invoked but that's limited to situations where the income really cannot be determent not where we have someone in court with the documentary evidence and with the testimony it was all there now later on in the statute there's a provision that in practice is used when we have someone with a salary and bonus and is a major effect was ultimately what was done in the two thousand and five agreed order remember it was a certain dollar amount plus a percentage and that's when all or a portion of the net income is uncertain as the source time payment or amount scuse me and that case the court can order a dollar amount plus a percentage which again was exactly what was done in two thousand and five now that's really more what we're talking about he gets bonuses we don't know what they are but again the parties provided for they had in the two thousand and five order they set up to one hundred twenty five thousand we're going to pay guidelines beyond that we're not going to pay and that's what the the  seven six seven eight i think there might have been a double count in there somewhere but he did have again the income here i'm sorry the earnings i think were three hundred around three hundred for two of the years maybe around four hundred another one of the years i think again there was an ira rollover of over one hundred thousand so whether you count that as income or nap but again that these are it was a one time deal the bonus is a one time deal and again when you're going to determines if you're going to average to get something perspective again i don't think you should include one time shots and i think you have to also look at the gentleman is a banker two thousand and seven but  correct that's part of their thinking well it's it is but i think that it's misleading if you do that in this case i think it's an abuse of discretion to basically say if the numbers are right that he earns an average of let's say four fifty what he never earned for fifty he earned three hundred here and three hundred here and six hundred one there's no evidence he's got ever going to earn six hundred again i'm sorry just to steal i mean to interrupt you what did you allege his income  we know he earns a certain income a good portion of the divorce when you order sixty six hundred a month eighty thousand a year you're assuming he's going to get a certain amount of bonus if he doesn't get their full resource it's less than the gentlemen it is isn't a problem so in a situation like that the better course was exactly what parties didn't two thousand and five was the say while the basic here on the salary his salary now i think is one ninety three actually in the bonus various and then give a percentage of the bonus so if he gets it she gets it if he doesn't get it he doesn't have to pay out of money he doesn't get it's the only fair way concerning the amount of the child support as we know the court vs the balance two competing interests number one is to avoid windfalls case law in the kates and also to provide a standard of living for the children that they would have joint absent the divorce but not without limits because of course that's a hypothetical situation had the divorce not taken place the two thousand and five or allowed again  guideline amount a generous amount and twenty eight percent of any bonus up to one hundred twenty five thousand that more more than would cover and did more than cover any reasonable need of the children the parties in fact realize that strict guidelines award in zero five would be a windfall because otherwise it would have just been straight twenty eight percent of whatever he gets it was a perfect fit for this case for these parties and parties agreed to that but at some point child support becomes a windfall mr monticello as i indicated also has to contribute to the private school health insurance uncovered medical insurance and all those other things he's entitled to live through now in fact in michelle's written closing want to point out that they only asked for six thousand two hundred sixty dollars a month that's in the second supplemental record and they base that on income of four hundred  thousand and i submit even if his income had been that high for the year guideline award would be a windfall in the court properly consider the closing on the court to consider the closing arguments of the party as you point out michel i asked so wealthy it's not evidence but my point was that the trial court even exceeded what she asked for at the trial it's implicit which is a i'm sorry but isn't it's not it's not evidence of such right it's not evidence absolutely but but would it be inappropriate for that for the court to arrive that in this case the sixty six hundred dollars while considering the closing arguments of michelle here i believe that it's inappropriate because of the the failure of the court to take what proof actually happened and to follow the and even so have the courts made a finding but say the court had the court incoming efforts to have the court sat i find his income or his average income to be four hundred thousand dollars again the court didn't analyze whether ever applying the guidelines was fair but i submit that applying guidelines to a four hundred thousand dollar income is a windfall as well and we've cited the single theory in that the bush cases and you know the many such cases talking about windfalls that at some point an office enough essentially in terms of the number again the case really comes down to the seventeen thousand a year extra for the irish dancing which michelle never asked michael about he never agreed to it it's not reasonable well he traveled all through the midwest observing the daughters participate in these various programs and performance is that correct i think he went to what to one or two of them yes so you say you never agreed to it doesn't mean he didn't agree to pay for it if the children had had the main you know what honey this is great but seventeen thousand a year we can come up with better uses for that money even the fact is the evidence was that the classes themselves i think were five thousand a year and then the competitions were an extra twelve thousand which michelle said she admitted it was her choice she decided to do it well since they're not married she got to choose he didn't get a vote and if they want to go do that wonderful but for him to really have to pay it which is the import of the decision i don't think is equitable under the circumstances he should have had some more of a say in that it still had to pass to be reasonable i mean fifty three thousand a year under the two thousand and five or is certainly a good standard of living i don't believe them an opportunity to voice his objection to this expense prior to the filing of this matter if you have that opportunity no not because it wasn't an issue i mean they they just they didn't have this expense when they were married exactly one then and then when he when he traveled when i was a tool high or somewhere else  not an issue i don't think he could have said you can't go i mean she had the kids and again it's seventeen thousand a year and is i indicated it has to be a substantial increase and outside of bet not as substantial increase michelle made choices as i indicated the irish dancing the whole thing about not paying debt down keeping money in savings account to buy a lot working part time that's fine these are all choices she gets to make as a divorced woman but it's not fair to stick discretion one was retroactivity of the increase in child support which michelle is claiming she should get in addition to the zaidi thousand a year sixty five thousand dollars we maintain  but your sites maintenance it's not necessary it's a windfall and one terms of the date she claimed in her brief that she should get relief retroactive to january two thousand and seven just when they make sure that justice understand the timing petition wasn't even filed to like tobar two thousand and seven that wasn't noticed up until january two thousand and eight and from there you know she makes various complaints about the timeframe but essentially the bottom line is that there wasn't one instance of willful noncompliance by my client the delays were essentially inherent in the system just the scale please call along you took to decide my client i think did change lawyers once which he's entitled to do but the trial court when ordering this eighty thousand dollars a year exercise a scratch and he said well you know that's enough he's always paid a lot he's paying mor and i would agree with you i think you're saying that this it took thirty three months but a circuit court retirement and increasing shall for almost three years he found a few spots in february of  think sixty six hundred a month is fine or right the judge had that number in mind when he determined i'm not going to give her rhetoric to vittie so then to turn around and say well it was ok to go for sixty six hundred a month but it wasn't ok not to give the rhetoric to vittie i think they go together as it were i don't think it's an issue of whether she should be penalized i think it's you know it's the trial courts call and the trial court knows what his schedule was and he knows what happened and the team to your question just to steal my client did he fight he filed the response it was a notice stuck remember until january that's when he got it so he you know he filed an answer there is no evidence on the record that he did anything wrong so now you're talking about particularly because the child support amount is so much you're really talking about punishing him if you turn around and give her a sixty five thousand dollars check which obviously isn't necessary i believe you have to go or you should go with what the trial court said and i cited the ingress ia case which mashal neglected the site which was another case where it took a long time and there was a delay to the white brief i'll forward it michael is current in his child support payments pursuant to the march twenty fifth two thousand and five agreed order michael has always paid substantial in reasonable amounts for the support of the children and therefore the court finds that the modified child support amount shall not be retroactive and shall begin on august fourth two thousand and ten so there was the court exercising its discretion and say you know basically enough is enough with respect to the issue of the attorney's fees they had also within the trial court's discretion keeping in mind that the trial court did order you know eighty thousand dollars a year it was michelle's burden as the movie had to show two things that she was actually liable for the fees and that she was on able to pay them and the court held that she fails to show either of those and again in the tr apparently believed that the husband was not going to charge as wife particularly look there was an engagement agreement with zero dollars so that was again the trial court's call and at least since one reasonable person could conclude that he wasn't going to charge or she can't show an abuse of discretion there didn't the parties agree that hourly rate was reasonable they did they did but that but they didn't stipulate that it was actually incurred and again that's her burden postle michelle's attorney provided the services for anyone else would he be entitled to under the circumstances if he could show what he needs to show which in this case also includes that she lacked the ability to pay and that was the second proc she didn't prove either of those she clearly had money to pay him what was in the account and she had other resources you know as i've indicated that they chose they made choices work part time irish dancing saving money for a lot of the trial court found she was able to pay the fees and again at least one reasonable person would agree with that  would ask for a reversal on our appeal and affirm its on the cross appeal to the the court address michelle's assets in discussing the the award of attorney fees in the award like me again go to the order it's on the same page as the next paragraph states the court has heard sufficient evidence to determine that each party has the ability to pay his or her attorney's fees yet also took as an a factor that michael has been current in his support and that she's represented by her current husband the court found that she should be responsible for her own fees so the answer is yes as you've heard there are three issues that are before this court this morning one on appeal by mr monticello two on cross appeal by my client michelle masel the i will address the issues in the order that they were first issue before the court was the issue regarding whether or not the court of used its discretion regarding setting the amount of support and i'll first point out that the petition to modify support in this case was filed on october twenty s the attorney that was representing mr monticello prior to or up to january through dolls and me my wife for the record my representation of my wife did not take place or did not start manson til june of two thousand and eight when this matter was actually commenced in the fees we the best particular issue were based upon representation of my wife from that point june of two thousand and eight forward there are no fees that were incurred prior to that period of of march twenty fourth two thousand and five when that when the last quarter was entered the change of circumstances must occur between the time of the last order insert in the period of time within the time the petition is actually being filed in march the time of the march twenty four two thousand and five or her the information that had been provided indicated that mr minus elevator on two hundred one thousand dollars slightly over that in two thousand and three and two hundred twelve thousand dollars in two thousand and four mrs minus sells of titian was filed in two thousand and seven in two thousand and seven mr miner sells income was six hundred twenty four thousand three hundred sixty nine dollars in two thousand and eight it was three hundred sixty two thousand dollars and although i don't have it that we didn't have an actual amount of two thousand and nine there was a calculation that could be included in it could have been taken into account by the court as to at the time of that particular july hearing he had all we already received bonuses in excess of one hundred thirty thousand dollars by july of two thousand and nine  suggestion that he was making only three hundred thousand dollars in two thousand and seven two thousand and eight and two thousand and nine is not supported by the record in addition as pointed out that much more clearly in the brief individual expense of these children increased by twelve hundred sixty dollars their expenses increased by twelve hundred sixty dollars personally related those expenses person related to the children increased by tolan's of the daughter of the queen two thousand and five and two thousand and all other expenses career proly affected those children increased by thirteen hundred ninety dollars some of those expenses would be gas expenses getting the children to and from their activities is that rightly their expense knol but it's something perfectly related to them cable television internet things along those lines that children as they get older become much more become much more and i was at the pentagon but some become accustomed to hear those monster twelve hundred ninety dollars that specifically address a good price that the expense of the kids those dealt with summer camps those dealt with educational camps they were taken during the summer as well as during the during the school year obviously the the council some just there at the court there that there are the court has a responsibility to provide a finding of what the net income is and there's no case law corona cited by counsel indicates that the court must determine what the net income is but it doesn't say it must express it as a explicit finding ok the reality is that if in fact the is not to deviate from the guidelines it is not required to make any explicit findings it need only set a guideline support amount  vs what happened in this case for the july thirtieth two thousand and ten were of the trial court indicated support would be sixty six hundred dollars a month in order to calculate net income it's a very simple calculation you divide the amount of support that the pork provided sixty six hundred dollars you divide that number by the percentage of guideline for eat the for the number of children in this case twenty eight percent and that will provide you with what the net income of mr monticello was as the term and by the trial court there's no stage three requirement nor is there any case law that says the trial court must make an explicit finding as to what the net income was counsel would try to make it appear that there's a requirement of that because the court must make that determination but nowhere does it say this is by him do it moving on now to the income spanish doesn't require either the court is entitle to use income averaging but they're not required to the court is not required to explicitly provide how i did this holly did that and how i did this monticello as exact and it's in there that word is in there helping his exact that income but the reality of it is that was his dream to come to some sort of a mount n b a team to end he in vitro fourteen for that amount recognize these additional amounts this for months almost and just in his brief at the core of this figure out of nowhere nothing is farther from the truth as you as your honour's recognize the closing argument this case provided eight explicit detail breakdown of what the amounts were over a specific three year period and actually did dec help elation who were the judge and i'm assuming that probably looked at the at the his own similar calculation and said this is the appropriate way to do that and that's how that mom was reached for mr market mr money so already is that the court could have deviated from the guidelines in the courts recognize in the july thirtieth date consider those factors the reason being the court had to one of the affirmative the fences that mr monticello filed in this case was that the court s and she was earning seventy five thousand dollars fifteen years ago in both of those cases the courts acknowledged that all parents the custodial in the non custodial parent had the ability to provide for the children and their lifestyles independently in this case michelle makes twenty four thousand dollars certainly does she  that while she was married to mr mysel she was a private school a catholic school teacher when she don't morse mr mysel she was a catholic school teacher she now is currently a catholic school teacher been has ever been provided to indicate that she would even if she were working full time would be receiving more than the answer there is a burden on mr mysel to show all those facts we can't presume those per month to support and she saw an increase of support of three thought to three thousand dollars per month and the course said no that would be a windfall but the court did award her two thousand dollars per month ok the court double the prior amount of support she was receiving day in and were also required that the husband in that case he responsible for paying all of the extra curricular activities of the children in this case in this case michelle is now the person that's based upon the court's ruling is now responsible for all the expenses of the children whether they be extracurricular whether they be travel related to it all of that expense now has been placed on she to be taken out of the sixty six hundred dollars a month support and when it was done a second time in march of two thousand and nine and the basis for that continues was simply a scheduling error on mr minus sells part mr michel once again is being extremely prejudice based upon labor is simply dilatory tactics will not feed back it will not serve as a benefit in cases such as this ok the court must recognize they have the period of time this taking to hear these matters is is certainly benefiting one party over in fact there was a period of time it takes for the courts the process these matters but a period of thirty three months is just simply out of the question ok in the for them case by the way is the case which recognized that there's really a prejudice that occurs to ok is taking substantial amounts of time to provide a ruling ok in this case the evidence was it had been completed in june of two thousand and nine the ruling didn't come back for in august of two thousand and nine the ruling didn't come back until july thirtieth two thousand and ten a period of essentially twelve months all of which was fine for that was in the control of the courts and we shall certainly be prejudiced misbah do knows the party shouldn't be prejudiced due to the delay of the of the of the court