may please the court we're asking you to correct the terribly unfair results and the lower case work katherine chose are now covering mark and receive a huge windfall at my client's expense the divorced property statute in this case does not control because the parties as the as they agreed opted out of the divorce statute and a fair a proper resolution unless case the pens really are contract law and common law  case is whether a p m a primero agreement that does not say anything about common law contribution eliminates the right of common common law contribution tenancy essentially what we have here is we have the parties taking title to these two properties they ask right from all properties in joint tenancy and if you take a look at the language of the p m a it essentially contracts to take title and joint tenancy because if you take a look at article seven c it's talking about dividing proceeds are dividing the properties equally and if you take a look at a day the parties contracted for a right of survivorship these are things that are perfectly consistent with joint tenancy and the idea here is that the joint tenancy that property was written by lawyers for both sides there were if you take a look at the p m a it shows that katherine had an attorney representing her and ronald had an attorney representing him there was testimony at trial that we couldn't  correct and the matter that was added in this case was the extinguishment of a common law right of contribution one of the rules of common contract law as i pointed out n f and i don't like backers life case is that vote the law in existence at the time the contract is entered into is a material term of the contract in this case there is a common law right of contribution but as a material time so you have two very sophisticated one of them saw fit to say for example that in the event either one of us contributes to the property or basis will be affected by that you should didn't do that that that  contributed roughly and it's it's rough numbers because there are some there are some discrepancies in the of evill in the lower court evidence but i believe that mr chester attributed roughly three million dollars more in terms of carrying costs and things of that nature i think you may be looking at just one of the properties i am i'm sorry i'm now ok you're actually correct right so as to carmel the difference is one million dollars right i believe that's up in the rough neighborhood and how much difference in esther did i believe it was closer to two and i asked her esther was a more valuable property and have a larger mortgage and i believe there were still significantly higher carrying cost the point that i think is an important one is that the p m a has a very different treatment for separate property than it does for joint property to your point earlier the parties did not specifically include language saying we are going to eliminate the right of common law contribution and i didn't think that's what certainly include any language talking about contribution or reimbursement for  for contributions but what they did in the separate property is they made sure to eliminate the right of one spouse to make a claim against the separate property of the other so what we see is we see the parties electing to treat two different types of property very differently they treated the suburb where a woman hating the right of a claim as to separate property we're not going to do anything with respect to joint property that has some import and the import is that shows a fail at that to treat the two types of property differently and one of the problems that we have is that the lower courts well that's ok define a separate property an article for an article seven eg and it capitalizes the terms no when you draft a contract why do you capitalize a trial because it's important and because you want to assign a particular meaning to a time in a purchased by mr chavez with or without the assistance of cantor was purchased under his name only and therefore was designated a separate property right and you're not finding out there are there were some properties that were purchased on mr chavez name alone there were some properties that the parties did deals with that were purchased in both of their names and i believe there was one property that wasn't tenancy by person's name who never took it in and the dream property is supposed to be split up equally it just says divided equally to be divided equally and the problem with with just taking a snapshot of of this it should be the the net that's why off after everybody gets back what they put into it should be divided equally and that's  contract is not entirely clear on that unless you adopt the rule of construction that says you won't cooperate to watch at the time the contract was out there don't you that's the importance of the dollar backers wife case that's been the law in illinois opposing counsel i believe couldn't not find one which is why we're we're dealing with largely non p m a related case law there's no precedent the word is not under these exact fact or applying the wrong that they that provide the kind of rock contracts that provides that the law in existence at the time is incorporated as a material term of the contract and that's exactly what the illinois backers life cases doubters this is under the u c seat which we've cited and it's also under the common law that if you've got multiple parties cosigning for the same debt then if one over pays the overpaying code  not have a separate section that deals with the payment of debts that's are treated as a function of property or just section five zero three of the divorce stature the problem is the parties opted out of section five zero three which leaves us back with the common law according to a bank in order to get money under penalty of perjury and that further proves this is not a gift she also cosign for though the dats showing that she was obligated to make repay one what's on your one ok thank you the scope of the p m a it's limited it only extinguishes rights that are created because of the marriage it does not eliminate rights that exist independently of the marriage such as common law contribution rights because common law contribution rights can apply to people who are not married or the people who are married a couple other straight points there was no evidence to support the lower court's comment or the common law it's a p m a that was drafted by ron and his insistence he would not have mary catherine before and it's one that greatly favored him and it to tell of the agreement enjoyed huge protection of a separate property and he control evident from the plane on being an ambiguous meaning of the p m a the lower court applied that claiming including its understanding of the phrase all proceeds of joint property to indicate that recruitment of prior expenses that might have been advanced by one of the parties was not a that focused solely upon title also the p m a does not provide for other parties to be treated as near lower case joint tenants at common law it created a new set of rules and contractually defined and aggregated a number of catherine both at the time at the p m a was signed and at the time of the solution and it came to the court and berger ronald had every control in his hands to ensure whether joint property was ever created the parties engaging number of real estate transactions dissolution they chose to treat these two properties differently concert here is presumed to contain all material terms and it does ronald would ask the court on commission we fill gaps and booking on since displaced concepts of the by both parties is evidence their interpretation but what it says is that the parties are foregoing all rights they have available to them in consideration for those ones which are expressly set forth in the p m a and that evidence is a view to not invoke or gap fill from other at the same time five or three would have allowed catherine to make claims about her non equity contribute to the property and the court would have taken other equitable principles into play such as the parties disparate wealth education etc the parties clearly wash wish to avoid that situation they wanted to avoid a situation where equity would come into play it would be determined solely by title and it benefited ron greatly it didn't benefit him because he chose in these limited instances he chose to title these properties knowingly property that is distinct from the common law and that's evidenced by the fact that the way that the p m a treats joint property is different than those three means of holding title would of the common law for example tenants in common beyond the four corners of the document and cite only revised common law displaced by the i think you may but as noted above it's not even so much the court would have to say we will recognize we will revive prior displace common law you have to si marriage income so long as he holds it in a separate property he had every ability and every access to determine what ever became joint property clearly during the course of the marriage they sought to maintain that they and the evidence a means of recognizing how to deal with that during the course of the marriage and during the course of the marriage when ronald saw that this is becoming a problem where he why he asked catherine to quit claim your interest in national or or decrease or interest from fifty fifty fifty ron could have provided for a right of contribution but he failed to do so it's not within the four corners of the document and it can't be considered now should be interpreted according to the plain meaning furthermore the indemnification provision occurred after twelve  court allowed the testimony but didn't consider it and didn't view that was in conflict the request to admit that word issue claim to contradict related to understanding between the parties during the course of the marriage and the court determined that labor on this those words in the short term and those are simply means of how mary persons decide to organize their affairs in a day to day basis and catherine her testimony was it had nothing to do is our she was concerned with the p m a and there was no inconsistency there then because the p m a was never modify it becomes triggered upon dissolution and whatever understanding the parties might have had as husband and wife do in the ordinary course of the marriage the rules change once the p m a is triggered upon dissolution each to sixteen admissions to coun first two were those are the result of the year we answer or issue affirmative answers there was a bit of a delay as i recall from the record because the chance that the they requested it were filed in a chance there was a motion practice thereafter on the sufficiency of those admissions whether objections are proper and the court by order alternately entered but certainly emissions would be deemed admitted ultimately the substance of those missions did not contradict with the plain terms of considered which we think this agreement screams avoid equity simply look at title it's an agreement the favorite ron great enjoyed significant protection over all of its assets and as a lower court made a factual finding his interpretation would leave catherine with little or nothing of the joint propert that was not the intention of this agreement it's not it's i think the plain which of the agreement of the lie that that was the result that they would lock the front door and separate property or runs for a favor and then allow silently revive commonlaw contribution claims to arise when there made whole that it was any real estate taxes were paid and what were main were the proceeds and those were divided equally aster was not sold because ronald wanted to retain it he occupied it for several years or entry of dissolution and the against the mortgage and what was left with the proceeds that were then divided equally so any debts to any third party have been made whole the only debts that ron seems to assess here are advances that he made during the course of the marriage that he contends were in excess and  reliance on the burger case i think is an apple said here the burger p m a was different than the chest p m a the burger p m a as i recall did not eliminate marital property whereas the chest  did the problem that we see is they agree that the parties opted out of the divorce statute but then they decide that they're going to opt back in whenever it's convenient they can't do that the parties agreed not to apply the divorce statute when they sign the p m a it doesn't apply they can opt back in and say well it applies because it displaced the common law you can't displace the common law we're not applying the divorce statu e as to kathryn's consent to the expenditures the co signature on the various loans isn't it consents to all the expenditures with respect to astra i know there was also something that we called a standby order that was executed early on this was exhibit five sixty at trial and the record that's fifty six twenty six through fifty six twenty eight  believe it was signed by both katherine and by ron we have the page with katherine signature on it i believe it was signed by ron this well and what that did was an authorized each party to be responsible for for certain properties that authorized katherine to be responsible as a liquidating partner with respect to the palmolive property and authorized ron to be responsible as a liquidating part partner with respect to the stage you can't go back to the statute because the parties pacifically said we're not going to apply the statute they eliminated that by agreement so the only thing you can fall back upon is the common law because that's the only law that's left to fill in the interest very result oriented ruling as mr halfman just alluded to the trial the lower court did not want katherine to wind up with nothing and in essence the lower court area by giving act would be to katherine by saying we're going to interpret this  in a way that's not going to leave her with nothing but then said brown was not entitled to equity equity as a quality the quality of treatment the quality is accurate he there's an equitable maxim to that effect