house of this case in this situation it's one of those rare cases where i literally thousands of people standing on this side people who work for the state of illinois federal  police men firemen for all are in the same situation when they're involved in this louche marriage and have a spouse on the other side who works in private employment or employment that's subject to the security issue in this case is a ban before this court before and the crook man or the supreme court in crook found in that instance where a trial judge had just the property that was awarded to each party according to what he found where the activities and the amount of sosa security benefits that they were  cited to the cases many of which we have relied upon in iraq briefs in making our argument here and said nobody's argue the situation in those cases therefore we'll leave it open for another day in this case then we have an open issue a law that our supreme court hasn't decided which is very important so i don't forget i'm going to first tell you that there decided without that evidence again materiality up and down how much weight you're going to give that evidence is obviously in play but in this case we believe it was a mistake for him to exclude that evidence and we would ask the court to reverse that decision as fire yes the pension decision my job is somewhat easier here than it would have been a month ago because at least in the state of oregon the decision is based on an interpretation of section four zero seven a of the salsa security act which is going to be the basis of th that's the first part in this case no portion of shelling mueller social security benefits are being assigned to anybody they're being not being transferred to anybody they weren't even considered in this case they didn't look at the amount of the benefits the only fact they looked at was the fact that she would have an income that would be shielded from purview of the divorce court it then goes on to say and none of the monies paid or payable or rights existing under this subchapter shall be subject to execution levy attachment garnishment or other legal process here we don't have execution don't have a levy no attachment no garnishment the only possible argument that could be made is that this would be some other legal process if you look at the herald decision they talk about that issue in great detail and cite the rule a statutory interpretation that if you have a list of specific items followed by a very general i don't that the general item has to be in the nature of the preceeding issues in this case there is nothing close to a levy attachment garnishment or other legal process the statute related to social security does not say that a trial court or a legal process cannot have any consideration of social security all it says is that it can't do these things that we attach to garnish or the process in this case when you look at the entire body of case law from the united states supre court decision all the way down to trial court decisions i have not seen one source that says the circumstance is fair a good deal and reasonable everybody says it's terrible it's horrible some people argue that tagaris is going to have to act in this instance but as the supreme court in oregon found it's not necessarily a requirement if we are going to have an applicable reasonable and just distribution of property which were required to do in illinois there test to be a way around this it's just not benefits i think we can all look at the history of what happens when even one candidate says that he or she says that social security should be cut from live in a whole country goes up there and i don't think there's a realistic probability that so security is going to be done away with or that the benefits are going to be severely curtailed at any time in the future especially in relation to these people here if you look at the case law i at the trial court try to focus on the supreme court decision from arizona in the tele case which is which came out and in the year two thousand it actually goes all the way back to the core last case in pennsylvania in hundred we've had at least one state where this valuation of process has been in place for at least twenty four years now and there's a whole host of other states including ohio arizona oregon washington state and maine that all have the same reasoning in place none of those decisions have been overturned in this case i think it's important to recognize that if you reverse the trial for its decision shelley mueller is still going to receive her sources your benefits she's going to receive every dime of it that she's an adult and yes fair her benefits are protected in this case the only place that we're looking for some relief is in the valuation of lieutenant mueller's pension now does it make a big but he has worked all through the marriage without the benefit of so security if you look at the porn left the situation it talks about inequitable nature of  s situation being a double blow and what the court in pennsylvania says in contrast an individual who was a civil service participant for many here will get the  perhaps routed into the civil service pension or another retirement type of vehicle which of course with then be included in the merrill estate in either scenario a substantial smee monthly income which would be used to financ slam ran into problems because it was a direct offset like we do in illinois with all kinds of divorce but this is a valuation of one party's pension benefits based on not this case she's getting the house she's getting all my clients for a wine hey she's getting a brand new power she's getting all that really isn't an issue or is it now but she's getting a tremendous amount of property plus she gets to she'll she she's saying that nobody can take a look at my social security and we didn't look at her sources carry her social security was not in any way valued we don't know what the amount is it's hers and she can keep it if you decide this under section four seventy eight of the social security act best what congress says we can't touch that federal preemption those as discussed in in herald by the oregon court state law on line family law is presumed to be basically immune from you you choose point in part or you should choose employment in part though probably most people go through that when the younger based upon all the benefits that you'll receive you know if you enter into one of these government plans same way that we were not going to get so security unless we qualify for it prior to t t or prior to entering into one of those jobs know i understand the equitable argument but it's you signed up for it but you also signed up in many of these cases it's not people that are really getting hammered by this are public servants people who are you know there's people in this room they gave up a lucrative career in the law to come to judge and serve the public  forced in this country to work and where the an equity of one party again to be able to is to stand back and and why what carolyn and this is a direct quote and their case but the husband was saying is what is mine is mine and mind is you hear the word social security in everybody's book can't touch that just can't do it on i think that's the mind side if you read the decisions of all the different courts who issue and it's not very well reasoned of actually congress may decide to turn to a legislator concerning this issue but as a lot of things in life if we have to wait for congress that's you know talk about speculative and so i think what it is is these these courts have seen that and that little nature of this somebody came up with a brilliant plan and i should have individual's name because it's some real thinking that was put into this and has come up with a plan th owners today before this court are two issues one of course which is a minor issue when you compare the two to one another and that is the exclusion of the evidence concerning m anticipated i prophetical however you want to couch it social security benefits that he is not going to receive because he did not pay into social security except for i believe he's had a very minor amount of off  and social security or so he will have those benefits but not other when this issue was presented at trial to judgment don't you have there was an objection when ms mack the expert for mr mueller was on the stand concerning the relevancy of the ability to present any evidence concerning hypothetical so security benefits that mr mueller she had calculated mr mueller would have received had a fee paid into social security i object this relevancy the core it took actually a brief recess because the court was not familiar with the current case i took it in chambers reviewed the current case and after reviewing the case determined that indeed any evidence concerning obviously obligated to consider the property and put a valuation on all of that marital property the the big issue in this case and i disagree with mr moran that this is different somehow from cook this case really is no different from perth with the exception of because this case and that's the problem with cambalache which i was going to get you the problem with from black on black you know what mr ryan calls a brilliant i call it anything but brilliant it is very rigid it is very inflexible it is literally we're going to estimate what your social security benefits what if then and you paid into social security and we're going to discount your pension by exactly that amount without any sort of consideration as to the facts in this case for instance in this case mr mueller is going to be eligible for retirement from the city of sprinkling collect his full retirement benefit at the age of fifty three years from now my client will not be eligible to collector so security benefits if there are any at the time for seventeen years after that this isn't just about attachment this isn't just about garnishment this is literally about you may not do anything offsets you may not consider you may not do anything like that  they're not accepting one black they don't think one black is the way evaluation should be done and i can only assume that there is some sort of provision in there hard hit that says that things are going to things get a valuation put on them and then those are just improper stage of their analysis because that's what they say they say i'm like well from the left did we are not putting a value wanted that valuation stage but once we get to the just and proper stage then we're going to consider it so they our in our refuse to acknowledge that quorum blessed is any sort of presidential rise far as they're concerned out in oregon in addition to that oregon the case in oregon is not similar to this case at all you have two parties in oregon who are federal employees both retiring i think they were within a year or two age wise of each other both going to retire at the same time so there's no question about who's going to be receiving what kind of money when retirement age comes because they're both going to retire at relatively the same age and i believe if i recall correctly they're even going to have relatively similar incomes when they do actually retire within a very small amount of money t each other which is certainly not the case here because it's under mr mueller is position and he wasn't terribly clear about it in his brief but in his closing argument he argued for a certain percentage for my client and in this court he's saying basically that this valuation should drop to basically where sixty two i believe per cent of his pension is all that will be considered and that my client should receive i believe roughly thirty three percent of that sixty two percent which for then seventeen years is going to leave him with a very sizeable engine benefit and my clients with no pension benefit or very small amount of pension benefit aside from that there is this issue that i write up in my brief which i realize is speculation but frankly we're doing a whole lot of speculation over speculation about whether so security's going to be around in seventeen years or not or if there's going to be any changes to it in the next seventeen years but at age fifty he's going to retire and in all likelihood he's going to obtain other employment that may or may not allow him to pay into social security and if it does he is going to have a soul security benefit out there for himself when he becomes sixty seven years of age as well which i think should not be lost on this court because you know when we're speculating so far in the future i mean right now we're speculating what nearly twenty one years into the future about whether or not social security will even be around to be of benefit to any of these people the only thing we know for sure right now is this pension exists and this pension has a value and we've all agreed on the ultimate value of it after judgment donya instructed his mac to redo her valuation and take out the cell security issue and so we all agree it's an asset and this is the value of it everything else at this point is a hypothetical hypothetically she is going to have a s security benefit as mueller when she retires and hypothetically mr mueller may also have a social security benefit when he retires we just don't know that at this point and that's the put that to me that's the ultimate visit that's built on a problem in this case i mean we're asking the court to her ten and that mr newdow has a social security benefit which he doesn't have so we're basically asking the court to put a value on an asset that doesn't really even exist and that at least at this point in time at no point time in the future does it appear that it's going to exist and i don't know how in the statute where there's a provision in the statute that allows anybody to place a value on something that doesn't exist you know i liken it frankly to someone coming in who has a family who comes from a family of some sort of substantial wealth and someone coming in and making the argument that well as this person's child they may some point in time in the future mom and dad are going to die and right now mom and dad are worth a million dollars and so she may get a million dollars at some point in time in the future you know there's no estate plan even though there's there's nothing to say that she will actually get that money so that to me is like what we're trying to do here we're trying to pretend that there's an asset that frankly just doesn't exist and i think the courts that have evaluated this other then kelly and i believe walker and quinn blessed and course now that the court out direct either taking it directly from their offsetting against some sort of other marital assets that's exactly what kirk said here and while cook i agree left a very small window open because nobody came into the supreme court and argued about form  and walker and kelly they left that window open that if somebody wanted to come back and argue those cases some point time in the future then potentially they would be inclined to hear those arguments but up to this point nobody has done that and i would suggest to you that cornbread and kelly and walker have been heavily heavily criticized by many many many courts and i even cited to some of those courts in my brief which i believe included well a number of jurisdictions new court case out of arkansas the remainder of them are appellate court cases but they certainly have a good rationale for the reasons that they are ruling in that they do not believe that quorum left kelly and walker are in any way controlling including the supreme court of new jersey which in hayden said hayden versus hayden said the fact that a plaintiff will not receive social security benefits now does not mean that a plaintiff will not actually receive so security benefits benefits use me upon retirement based upon other employment either during his state least career is that no state police officer or very after so much like in this case when mr mueller retires at fifty none of us really know what is going to be happening with him up until he reaches reach sushmita reaches retirement age and much like a speculating about what he what could have happened what should have happened you know what the plan was when they got married i mean i you know i agree with you just tonight i soon everybody here had a plan you know they got married he becomes a police a city of springfield police officer everybody knows he's not going to have so security benefits and everybody plans their life meaning and  mueller and his life it plan their lives knowing that there's going to be no sister to benefits for him and there are going to be for her now because whatever changed in their lives and their marriage you know that plan has now changed and they're no longer going to mueller believed when they all started out down this path of marriage that he's going to become a city springfield police officer he's going to have this pension we're going to live happily ever after and she i assume there was a retirement plan that included his pension and personal security are being over the top when everybody retired to live happily ever after that didn't happen and you know we can't change the fact that that didn't happen but the bottom line is the federal law is written in a particular way and in that particular way absolutely prohibited any sort of consideration or offset with regard to the social security benefits now in addition to hayden there is also the case of reimer's arraignment versus payment out the court of appeals out of tennessee and in that case they said if social security cannot be considered a marital asset then the lack of social security should not be considered in the reduction of marital assets which is crime which is precisely what mr moran is asking that this court do is that the fact that there is no security he once back to be considered in reducing the value of this pension to a point that he believes is fair and equitable to his client in addition to that there is johnson versus johnson which is from the district court of appeals in florida and in that case they said they rejected the holdings and front left kelly and walker only in the federal statute not only perhaps the outright division of social security benefits it also prohibits the indirect division of benefits by awarding a nonparticipating myself reject quantum drive reject kelly reject walker find them to be had not in compliance with the holding in his squad no or her in compliance with federal law and based upon those cases based upon in ray kroc my client is asking that this court affirm the decision of the trial court thank you then they base their decision on appellate decision from oregon the swine case which in herald that just came out they said no swines being read too widely therefore the tennessee case case the real question decided in that case the fireman at issue was trying to argue that his entire pension was not marital property in the first place and should not be subject to being distributed in a dissolution of marriage proceeding because it was like social security and should be so holy example therefore the arkansas case falls out as f plant number that stood out and said that's what we should live with and that's what mr mueller should live with if that's not rated i don't know what it is there has to be some fine moment and i view sleep the court consider other issues in making its distribution of property we're not saying that they can't as far as other employment in the future speculative in illinois we usually  require a property valued at the time of judgment that's why we have present value terms so that we can do this i don't think the court can speculate in this case again i think the issue is fairness i think my client's arguments are clearly of second court and we would again request that you look at this look at your work and decision and make a decision th