one case the court had several holdings the first concerns whether or not the burden on the move  the application for an extension of make that's let's show a substantial change of circumstances or whether it should be treated as a de novo hearing the supreme court held it is to be treated as a  then but then you filed a motion to increase the minas to thirty five thousand dollars after taxes which makes it fifty some thousand dollars so you have to essentially triple the amount of maintenance  argument is you start from scratch this is like you're coming to court this is as if you're coming to court for the first time and seeking nature that's you go through all the factors of section five zero four  which which would be the factors that the court we're familiar with the factors of five a forecast so so we start from scratch in what does that mean in terms of does it mean that the fact you get to start from scratch does that then read out three point seven of the marital settlement three point seven i refer to it as the penalty clause you call what you want as a read out the county clause it would that would obviate the penalty five years of payments and if susan's petition is unsuccessful she must be one hundred percent in next attorneys right right did she see can increase technically no she was reduced it was twenty thousand dollars per month rates even taking them to twenty thousand dollars a request your request for thirty five thousand dollars post tax right doesn't isn't that more than twenty thousand erm i'm missing that's the way that i look at the brung case and the golden case thought of getting back to when we got should say to the the penalty what i call the penalty clause three point seven the you cannot determine who won or lost on the motion that's that's one point and that's pursuant to blunt versus koster as i have previously argue the second point is that the original award even if you could define how much of it was made to this was for a limited period of time the final award which was sixty eight hundred seventy five dollars a month was made permanence that goes on for years and years and years and potentially it goes on until susan thinks your body passes away he could go on that one so there's nearly it could be review that's modifiable be it in that it is a permit or it is modifiable however if it never was modified it could be extremely greater substantially greater amount they and the analogy to the award was even if if it could be interpreted that the total on the allocated award was on maintenance it would be a substantially greater amount and therefore technically would make it was not specified in the middle settlement agreement in teaching a body that she was required to obtain came from employment but nevertheless she was attempting to do that in the five year period that was given to her nervous she was upset and this is howard this is what i know the situation was with my clients she at the time approached the voice in twenty five she believed she had until tw ten to sever soften up employment in fact in twenty zero seven when the first modification occurred she was employed earning about ten thousand dollars a year at that time she was working  bettering her employment and her plan was to take a test to become a licensed social worker that was in progress and that certainly would have been accomplished by twenty ten but the trial judge because they have to be judge believed wrongfully that there were two minor children at the time of the voice when in fact the only her daughter was nineteen years of age was in college living in new york there was only one minor child when the when the trial judge in twenty seven reduced the i delegated award from twenty thousand to fourteen thousand five hundred a month the judge did that on the basis that there were two children that were now no longer an obligation of misty giovanni the older daughter of the judge believed to have become emancipated when the child when the child had been investigated prior to the divorce and the younger child was attending college or was attending boarding school in colorado at that time so when the when the other court reduced the arroyo by fifty five hundred a month it believed wrongfully that it was reducing it based on the elimination of two children as a financial obligation to my client that was wrong it was really only one child that left the nest because that child was an attending boarding school and the former husband was obligated to pay one financial burden of my client to be paying for the support of under the under a kid award if only one child was her obligation and then that child left for boarding school i don't believe that the trial would have reduced the on our kids support by as much as fifty five hundred dollars i believe it should have been a lesser amount if the court was reducing it by fifty five hundred dollars because the court believed that two children were no longer a financial burden of as a result of the emancipation of the parties older daughter oldest daughter jessica which resulted in the entry of the july one thousand and twenty zero seven three afterward reducing that support obligation to fourteen thousand five hundred it there was it goes on and on several places of the florida where the court believed that there were two minor children at the time of the divorce and reduced the made the first reduction in twenty seven based on the fact that there were no children to be support giovanni denying her petition for attorney's fees saying that her petition for an extension of a this is tonight in one breath and then in another part of the order granting her permanent maintenance the court in the in the part of the order that says your petition is tonight so therefore i'm going to die your right to contribution of attorney fees that the court the court really granted her petition although in the end i'm out much less than what we think is reasonable and should have considered her petition for a contribution because she did not have the financial go to pay the court instead answer to judgments against her for seventy eight thousand roughly dollars on each of them one for feaster that she should pay to her ex husband seven the penalty clause and were successful before your honor's then we we and our client will be responsible for the attorney fees incurred by the former husband that's very egre hearing you're not seeking an increase it's a novel and furthermore you can't define how much money through this will be paid to her if she was paid one dollar out of the fourteen thousand five hundred and the rest was child support how do you initially because we thought that there was a case that that held in such and further research we determined that that was not the case we couldn't find a case but there was something in the back of my mind couldn't locate grant grant and the sixty seven page response and the one thousand page reply what this court really has to consider today are two basic issues one did the trial court abuse its discretion and that by the way is the proper standard of review if you look at the goals in goals and sets and pretty clearly it's become the standard case the difference between review and modify ability or modify ability you need substantial change in circumstances court there is a standard of review in the appellate court but we get confused because what we're before the court on is as as was noted by one of the justices two issues raise susan in the appeal while on the as she indicates in her client quite clearly you can argue that that's not what you said but it's that what you say we're asking for two things reviewing an extension of the  maintenance and we're asking for a modification and then increase that had susan come in well before i go there the first issue the first issue and based on an abuse of despair the standard is abuse its discretion in reducing the amount of on a hello k good maintenance and support from fourteen thousand five hundred dollars which was the amount sat at the july two thousand and seven hearing and that by the way was a court was very well aware that he was dealing with a child who is graduating from college so that two thousand and seven order which is a part of this record became the baseline you had one child left and by the way nick pursuant to the two thousand and five marital settlement agreement was paying two susan twenty thousand dollars from which susan by the way was paying by the agreement the marital settlement agreement one third after certain funds had been exhausted of their daughter's college err and enforcing article three paragraph three point seven of the parties settlement agreement which provided as is noted are ready if either party comes within five years and this was of course an attempt to stop litigation other than what was necessary it was revealed after five years without this poison pill penalty cost whatever you want to call it was an attempt by the parties to stop unnecessary litigation with a penalty if you came within the first five years and so the agreement contemplated that apart could come within the first five years but if you came within the first five years nick asking for an increase souse it excuse me nick asking for a decrease susan asking for an increase if you were  the number is to be paid to net because of that provision and then in the alternative and this is how grant grant becomes a party to the case if for some public policy reason not to have you and none existing  private to the act the parties are encouraged to contract encouraged to avoid litigation they did that and so when susan comes in and says as she did that there are public policy reasons you shouldn't enforce it the court says and is order of two thousand and ten well if you somehow prevail on the public policy reasons in the light of your theories in light of what should have been a rather simple hearing and a discreet hearing that is we call from two thousand and seven either by review or however you wish to come as you did by modification we we take a look at that and when we look at what you did in this case and trying to resurrect essential because the birds are confused i tried at and let me digress again for a second five ten modification of may it says look at the five ten factors and also go back and look at but your response is you know that's the way i think it if there was an abuse of discretion it should have been retroactive not to the february reduction but to the time of the filing as the court had an ability to do the court didn't give any for retroactivity it had every right to do discretionary with the court to have reduced it to six eight seven five per month in august from the filing in august of two thousand and nine well right the court does is limited to the february order so if if anybody suffered and by the way that was one of the hakan findings that they can findings that court makes in terms of the harassment and the reasons that  if under the article three section three point seven the reuters for some public policy reason not to be granted under hakan and under five or wait be this motion was advance for improper purposes it was harassing it allowed to receive support even at every deuced amount that she wasn't entitled to and the retroactivity right frankly should have gone back to the time of the filing and at that i hope that answers your question your  so those are the two questions one was there an abuse of discretion and by the way again goldman sets out the six elements you look at when you do a review and quite clearly says the case that he advances is the seminal case that this is an abuse of discretion argument so again confusing burdens of proof confusing standards of review and proceeding to trial to try and essentially retry the hands of course because again consider what's being  one review doesn't have to be substantial changes but forget all we get to retry the standard of living we get to retry our property was divided that's exactly what's being asked of you on earth your honour's and the trial court found that this was court originally granted as you know a motion in limine a saying we got from two thousand and seven to the present and then later when there was going to be this two or three day offer proof the court took the air out any potential air out and said you know what i'm not going to take it as an offer proof i'll let you do what you want to do but that's what created the cost of this litigation and then what happened at the trial well there were five that there were five witnesses to testify if her own expert testified as to her ability to work her own experts said that she could make on on average a social worker in her circumstances could make thirty seven thousand five hundred dollars and the court was defying that based on her own experts testimony her failure to get a job as she was working when she filed the petition but not then at the time of the hearing her reasons for not going to get a job or not having a job were in bad faith the expert that she put on the stand not credible right not credible because the expert herself said that the protocol that she was given to use could not possibly essentially establish what they were even trying to do and that was a lifestyle of a twenty five year marriage when only one year was being used when trips that weren't taken were being put into the equation when if it cost this much prefer that was the number that was being used despite our just dealing with susan and not a whole family despite the fact that the perquisite that nick had was no longer even available to himself so there's susan prevail on her petition is she subject to three point seven or she's that and i would note this nick was very mindful of this provision three point seven so that when he comes in and his own petition saying well my income is down thirty percent in a three year period that i'm now before the court from the two thousand and seven hearing my son has a mansa paid it and susan has rehabilitated she has a degree from the university of chicago by her own  she is a good social worker she she can work his petition is granted the important thing to note is he didn't ask for any specific amount he asked please review it and do what's appropriate and he didn't ask for terminations because he knew that susan was not likely even in the best of circumstances to ever be in the position that she would earn enough i curse all without some unforeseen event occurring that drop the financial warning her in her lap he never asked for terminations there is nothing that susan won in this hearing if he never came in for a review there never would have been a terminations and he didn't in his own for the wrong reasons and that awards the fees the reduction comes after competent evidence comes in from day who was found credible as to all of the elements that he pled in his own petition and the court found that ten thousand was what she needed and then found further that because she could earn from her own experts now thirty seven five a reduction of thirty one twenty five per month as against the ten thousand per month bring it down to the six thousand eight hundred seventy five dollars per month and it should also be noted that when it got divorced nick assumed all the debt in two thousand and five he assumes an enormous amount of debt there was an imbalance at the time of the entry of the marital settlement agreement in the distribution of property and the court notes at trial that imbalance still persisted he his estate was worth approximately two hundred twenty thousand her state is still wor and so you can't just come in and out of view as they did a standard of living factor there were all of the factors for the court to consider a standard of living was not one that should have considered because of agreements and  the court presided over the case over all of the pretrial motions over because this was imposed to pre judge lopez if this is supposed to remap just lopez heard eight days of trial so he was involved in the trial itself and had personal knowledge of what took standard heard competent evidence as to what occurred and i think it's clearly supported when in fact susan as the record notes spent over two hundred thousand at the time and legal fees  you have one minutes well to conclude i think there is no question that nick prevails on his petition and more importantly insofar as fees are concerned susan did not was unsuccessful in her requests and again this is the justice nowaday it's clear she asked for an increase it's in their reply brief and stated very clearly susan was asking for two things an extension and she was asking for modification and an increase she was unsuccessful she was unsuccessful and try to case and wrong burdens she was being told that this was not the way to do it and yet she persisted was harassing today in terms of the discovery that had to be special one final point that would make the subject any questions nick is entitled to fees for this proceeding we have requested and our petition that this matter be remanded as susan has again  three point seven of their marital settlement agreement if we don't enforce the agreements they're not worth that much so i ask that you continue to enforce their three if the trial court did order susan b sixty six thousand dollars  three point seven states that if we prevail before your honor's then we pay a penalty then we are sanctioned that's how i read it if i win here then he wired to remain and it back so that judge lopez can order attorney fees to be assessed against my client and us i don't think that makes any sense secondly what your argument if you lose here is a feast  there at argument doesn't have to be made because they have provision doesn't state what happens if we lose it there is no sanction if we lose it just if we prevail that's the wording that's the wording of the during review proceedings in a view or statements in previous cases that a substantial change in circumstances need not be shown in review proceedings that means review of maintenance we hold up the moving party and review proceed east does not have the burden of proving a substantial change in circumstances the court in its order wanted us to have to be imposed with that burden of having to prove a substantial change in circumstances we have to go through a one trial in order to prove a substantial change in circumstances as ordered by the court the court found that we didn't prove that now we should not have to approve it because of those cases and in addition the court shortened the five year made a settlement terms from twenty five to twenty ten that our client was to receive support shorten it to twenty eight and said she gets it until twenty away to reduce the amount if she doesn't file within thirty days of the boy's graduation from high school she will be barred from further maintenance so career maintenance her support obligation ended in twenty eight it now starts anew the extension provision of the order is a new our lord it's starts from zero it's a new ward we aren't modifying anything we're asking the court would you care for future maintenance and if so we have a right on a day no other basis to ask that it be given from a standpoint of screwing the standard of living and all the other factors of five zero for we start from scratch that's how i read golden and that's how i in twenty eight and twenty zero nine she had some retirement benefits that were awarded to her from her former husband and a couple of hundred thousand in how it had come in actually assets that she could use that's really what she had not a million dollars not replete throughout the order as i stated previously but mr leavitt says otherwise the there were there was one minor child only at  marital settlement agreement stated that after the expiration of the five years she could come in at any time after that and ask for an extension there would be no cutoff it would not bother her from future make this she was greatly i don't think i have anything further to add other than i would ask your honour's to reverse the trial court and to remain end up for further proceedings to determine the proper amount of maintenance and other issues that are open