saw my name is gone paul and i am here on behalf of jeff wells we are here today on appeal from a decision of the trial court entered in december of two thousand and fifteen in that the parties and made a determination that actually there was an abuse of discretion by the trial court in failing to determine a downward deviation and so this court issued a mandate in order for the trial court to make a determination on a downward deviation we appeared before the trial court in september of two thousand and fifteen we addressed the issues with the trial court the trial court then scheduled a hearing the in this case in november of twenty  when we met with the trial court in september of two thousand and fifteen counsel for ms wells had indicated that she wanted the opportunity to put on further evidence with respect to the downward deviation i objected to that and indicated to the trial court that the record on the downward deviation had been closed that in june of two thousand and twelve other parties had offered testimony had offered exhibits and then a decision was made by the court in august up twenty twelve based on that evidence that was the decision that we had appealed to your honor's that was heard in two thousand and fifteen and the decision was rendered and in this court's appellate decision very specific findings were made with respect to the avodah ends that had been introduced by the parties in june of two thousand and twelve in particular the court found that indeed carol wells income was significantly higher than mr wells and from this court also noted in its of public opinion that the needs of the three minor children in this case were met and that there was no evidence presented in june of and twelve that any of the children's names were not be matched this court noted that carole wells was receiving two of the three tax exemptions of the minor children and this court also specifically noted that ms wells domestic partner was pain at least half of the living expenses for that family this court in its appellate opinion and the remainder back to the tr court acknowledge those things however despite that and despite the fact that the trial court recognized that its job was to follow the mandate of this court and determine a downward deviation the trial court said i'm going to reopen the evidence one of the arguments that the petitioner made at the time that we were back on remey and in front of the trial court was that the petitioner was surprised or ms wells was surprise about this downward deviation issue because we had only talked about it in the june proceeding and prior to the court's issuance of its august two thousand and twelve order but this court very specifically found in its appellate opinion that in fact that issue was raised in closing argument i spoke about the downward deviation we argued that the nine hundred dollar set off was an outward deviation ms wells argued it was maintenance but this court agreed it was a downward deviation and the the titian or in this case ms well should not have been allowed to take a second bite at the apple and introduce additional evidence on that issue if we would assert to your honor's that in the event that this court makes a specific mandate and i would argue in this case that it was a specific mandate that only in extraordinary circumstances would there be an opportunity for the average insta be reopened there were no extraordinary circumstances even asserted here and ms wells had previously been able to testify about all of the petition third petition to modify the support asserting that she had experienced a substantial change in circumstance the two bases of that being that mr wells income had increased and the needs of the children had increased the trial court did allow additional evidence on that the titian and certainly we responded with tax returns and some other information that updated the financial situation of the respective parties the trial court took the downward deviation remain and issue and the issue of mrs wells third petition to downward deviation issue and then also abused its discretion in setting the downward deviation at twenty five percent when the statutory guideline would have been thirty two percent we also assert your honour's that the trial court did issue a decision that was against the manifest weight of the evidence with respect to the petitioners assertion that there was a substantial change in circumstance it has been admitted it has been determined by this court and also recognized by the trial court in the december two thousand and fifteen order that there is a significant disparity between the income earning capacity of both of the parties in this case if this court looks back to the judgment of dissolution date in two thousand and seven mr wells was making sixty thousand dollars mrs wells was making two hundred  thirty three thousand dollars so almost four times what mr wells was making when the judgment of dissolution was entered and at that time the parties by agreement agreed ms wells would pay all of the extra curricular expenditures that the children would pay all the child care expenses of the children and that mr wells would receive a downward deviation now in the judgment of dissolution mr wells was given a specific dollar amount of a downward deviation he was given a nine hundred dollars downward d v this of hell of court decided in april of two thousand and fifteen that that downward deviation of nine hundred dollars was only automatic through september of two thousand and twelve which would have been a five year period however the court and its appellate decision did say further deviation should always be considered in the future and i would argue to your honor's that we have to look at the man from two thousand and seven and compare it to the numbers that the trial court had before it in twenty fifteen in determining whether or not the downward deviation by the trial was an abuse of discretion mr wells was allowed to pay child support of four hundred dollars a month in two thousand and seven his actual child support obligation under the statutory guidelines would have been thirteen hundred dollars so he received up about a twenty percent deviation he was painted about eleven and a half percent of his net income in two thousand and seven and that's when the party's income  was making about four times what mr wells was making in twenty twelve august of two thousand and twelve when the evidence was presented that drove the downward deviation issue mr wells was making seventy thousand dollars and mrs wells in twenty a latin testified that she had her best year and she made over four hundred thirty thousand dollars so at the time of that june twenty  and her year to date income in that particular year exceeded mr wells income by five times and yet the trial court making its determination on a downward deviation given the based on the evidence that was presented was about us sixteen percent deviation or about half of what the statutory guideline would have been instead the trial court makes a decision that will reduce it by seven percent with really nothing material in the determination by the trial judge that that was an appropriate downward deviation certainly this court recognized its role in setting a downward deviation and indicated in its twenty fifteen opinion we make these factual findings which i would assert were kind of findings of the case but we're going to remain under that issue of downward deviation to the because it is the trial court's responsibility to set out and determine the actual immigration however we're back before your honor's because i would assert that in this instance the trial court did abuse it discretion in setting the deviation at twenty five percent that it should have been about half of the statutory guidelines and that should have been in place for the period from september of twenty twelve when the five year period recognized in the judgment of the solution expired and then up to september second of twenty fifteen when ms wells filed her third petition a modif argue that a different result of a contrary result would clearly be appropriate in this instance given the evidence that the trial court considered in november of two thousand and fifteen ms wells testified in january of and fifteen she voluntarily left her position at i b m historically she had made six figures every year with i b m and certainly i recognized in the trial court recognized that she had respect earning capacity but she made a decision because of some issues in the marketplace with i b m but she was going to leave that job she left that position to go to ernst and young and she testified that instead of a commission based income she was now going to earn a guaranteed salary of two hundred fifty thousand she asserted that that change and employment was factually important but that really the basis of the petition to modify the third time was because respondents to the increase and the needs of the children had increased respondents income increased your honour's about forty five hundred dollars in a net number counsel in her brief argues that the gross number was ninety eight thousand but in every other instance the trial court dealt with net and so mr wells essentially went from seventy thousand net in tw son and certainly the trial court said you know we could all quarrel with whether or not that's a need for a sixteen year old versus a convenience for a sixteen year old i don't think we even have to go that far in terms of weighing the manifest weight issue because in this instance the original judgment of dissolution was a decision negotiated between the parties where carol wells agreed despite what the expenses of the children were going to be she was going to meet those at one hundred percent and she didn't ask in her petition to modify filed in september of two thousand and fifteen for that provision of the judgment order to be changed so i think it's a red herring frankly in terms of the decision issued in this case on substantial change of circumstance that she has searched that the child expenses increase by six thousand dollars i would also point out to this court that frankly the testimony that she gave in june of two thousand and twelve regarding the expenses locked it in that those expenses were thirty thousand and then when the judge allowed reach ask for money on those same deviation issues  november of two thousand and fifteen that any needs of these minor children were on that i would assert your honor that under the your honour's that under the guidelines the statutory guidelines for setting child support each of the factors weighs in favor of a reduction and a downward deviation in the support set for mr wells and i would further assert that those factors support that the finding of the trial court that mrs wells mack her obligation to prove a substantial change are not support and on that basis i would ask that this co reverse the decision of the trial court and to remain and the issues to the trial court an additional time with a specific mandate that orders the trial judge to create a downward deviation for that period from september second of twenty twelve to the present thank you thank you the morning i am helen o'gara i am here for my client carol wells she is now known as carole snyder with regard to this case i just want to point out that since jurisdiction because they were not timely however we are here again on an issue that to me is very simple and to me there are three issues that they have presented for you to review and i would like to go through those each individually the first is this issue of mandate did the trial court air win win back on greenland it took you up and counsel is right i did argue that you know your honor nobody a deviation i didn't know the court's going to be a request for an aviation till closing argument and my evidence would have been different and your honor i would like an opportunity this is at the trial court level to present some additional evidence because we didn't understand that there was a request for be a sion and therefore did not present the right amount of evidence now counsel has given you transcripts of that hearing i would ask you look at we had approximately ten pages on that very short testimony approximately ten minutes where my client simply went through these are my children's expenses and they are sick now because my client made good money she doesn't she but the issue of the deviation i think needed to be readdressed so then we're talking about what was the mandate of this court did the trial court error by allowing me to put on that additional work amount of evidence and i would submit they did not council has gone through what were the findings what were the what were the findings i believe that what you should be looking at is what was the mandate of this court and in fact in my brief the additional appendix has the opinion of this court so you can her and i would ask you look at that and really look at that portion of the opinion because that nine hundred dollars we submitted at the time was for seven years and what did it represent it represented what would have been maintenance it was negotiated between myself mr walker and a mediator don we thought that always thought of writing a check this way and writing another check this way we do it that way it seemed really like a good idea at the time we'll never do that again but the bottom line is this that was a seven year period of a deviation or maintenance or he got a reduction and i have quoted that language in my brief as well indicating that that was for a seven year period and was basically in in exchange for him person who or the original body that heard the evidence saw the witnesses reviewed everything and i believe that at that time yes this happened that was the correct thing to do then that's what the did hit the armory man it looked at everything considered a small amount of additional evidence and then made it through so then i think we get to the second part so we have the first question is did the quart in any way mak remand in terms of allowing additional evidence and i submit to you if not i submit to you that the trial court completely followed what the mandate of this court was in terms of allowing a small amount of additional evidence or further proceedings if you will there was nothing in there that said listen we want you to just go on white house there was nothing in there that indicated here's the percentage we think you should use but instead they gave them the trial court that discretion and i cite in my brief numerous cases that talk about the court using discretion to abide by what they believe the mandate would be with a reasonable following of the mandate so i think that that is fair counsel keeps using this phrase extraordinary circumstances extraordinary circumstances and in fact there is a case that talks on remand about there being and need for extraordinary circumstances that's the sump ok i've talked about it in my brief now that it's a very unusual case and that case to attorney or the party stand up at trial and say this house is worth one hundred seventy five thousand dollars they stipulate that then the tramp or it doesn't explain why set a value on that house of two hundred twenty five thousand went on appeal you indicated there need to be a deviation it went back down and guess what the trial court did it did exactly what you told them to do it deviated and it deviated downward from thirty two percent to twenty five percent i think that is a substantial deviation and i think it is what the court considered the tram court went back and looked at everything and considered this evidence the trial court's ruling that's by the way i thought was well written i would ask that you review that again in terms of covering everything the trial court considered in setting that deviation and that deviation is a substantial one when you're talking about three children in my brief i've also done a little math for you because there's never been a dispute that the child support that i calculated that thirty two percent everyone agrees that that that math is correct and so in my brief i point out to you that if we're going to go on twenty five percent for three children whose children get around four hundred dollars apiece per month i don't think there's some argument that there's some sort of windfall my client i'm sorry i raise children i do not believe four hundred dollars a month per child is any sort of windfall i do not believe that the court erred in any way i do believe that the court considered all the evidence in setting child support at a twenty five percent figure instead of a thirty two percent  hawke we've been fighting in court for three years trying to get the new the first child support figure set and in that time there had been a substantial change in circumstance and in that substantial change in circumstance my client did change positions she was unemployed for a period of time which was testified to and she changed her position working now for a different company at a sad rate of twenty five scuse me two hundred thousand dollars a year and originally there was some sort of transcripts and said and rejected that and actually said wait a minute so now because we're deviating we have to keep her adderall then come now i want to talk to you about a little bit about why she changed employment and she testified to that as well but if you because we were on appeal and no one really knew at the end of the year what her income was going to be in twenty four thousand had dropped substantially two hundred to two hundred fifty thousand dollars a month and in fact in their brief at one point they argue well if in twenty four payne she only made one hundred seventy one thousand dollars then in twenty fifteen when she made the quarter million dollars then there's no substantial change in circumstance because she's had an increase you know because nobody knew about the twenty fourth union came because we were still arguing over the evidence that was presented twenty well twenty twenty  so i guess i just want to diffuse that idea that my client had done something wrong by seeking new employment when in fact that employment did increase her situation but it decreased and it decreased substantially now council keeps wanting to say  appellate court on this and to be honest with you i'm not arguing with your findings i think that they actually are very supportive of this third issue which is that issue of increasing child support after twenty fifteen and there has been a substantial each and circumstance and that substantial change in circumstance can be taken directly from the original opinion of this for which indicated that and i'm quoting here three hundred twenty two thousand seven hundred six thousand dollars she had made in twenty eleven by may so yes she had made a substantial amount of money in two thousand and eleven they also talked about the income in two thousand and twelve as being over two hundred seventy said these children's needs were unmet and i would agree and i would agree because my clients testimony was i work this hard for one reason i work this hard because i want my child to have nice things so what was her testimony her testimony was yes he's going without mom mom is one who's not putting money in a retirement account mom is the one who's cut back on her living so that her children can have this sort of lifestyle but the bottom line is if we're looking at mr wells as obligation i believe mr wells his obligation was appropriately set by the trial court at i believe it's twenty eight percent for the timeframe after september of tw twenty five percent from september of two thousand and twelve to september of two thousand and fifteen so the trial court looked at everything and gave a slight increase was there a mathematical breakdown no two i think there needs to be a mathematical breakdown there's a deviation oh i numbers versus net numbers and you have to be very very careful about following the brief appellant because with regard to what those gross numbers and net numbers are i have i have cited on page twenty of my brief his gross income and she was indicating it was not but the gross income was seventy one thousand eight hundred four dollars in twenty thirty and twenty fifteen his gross income from state farm alone was eighty one thousand seven hundred sixty two so there was a fairly substantial increase of almost ten thousand dollars in one thousand nine hundred fifty eight in just a two year time frame that's a fourteen percent in on his grossing and so in terms of looking at that there was also some talk in the brief i don't wasn't necessarily argue here today that additional income that he had from dividends should not be considered we don't believe that to be the law we've argued that  pact all income from all sources means all income from all sources so it has a dividend income that needed to be considered in terms of totally coming up with what his gross income was and his gross income in and fifteen was ninety eight thousand five hundred two dollars and thirty two cents and this is a guy who is paid around four hundred dollars a month per child so i do recognize my client makes money and i recognize that mr wells has an obligation to support his children and i think that's important not just for my client but i think it's important for the children i think it's important for children to know both of our parents are paying an appropriate amount  to try to make sure that we have the love and support that's the statute requires of both parents and so with regard to this i would ask that you just simply affirm crown court i think it follows the mandate i think  child support appropriately at twenty five percent for that three year period from twenty twelve to twenty fifteen and i think a twenty eight percent at the current amount is also appropriate that essentially knocks off one of the children under the  guidelines i don't know if that's what the courts thought process was i would ask that you specifically reject this idea that this nine hundred dollars which we keep arguing about and he's arguing about it's done you've already dealt with that he doesn't get the one hundred dollar reduction anymore it was a form of maintenance so that's done if you go to the sixteen and a half percent i grabbed my calendaring quickly did the math on that that basically comes out to just under nine hundred dollars on my math on trial court and other appellate courts to direct the trial court to consider your opinion and your full opinion and the the message in the appellate opinion in this case is not what counsel just said which is the nine hundred dollars was a form of maintenance this court clearly rejected that mr wells received a downward deviation inish child support for five years counsels that seven but actually it was a five year and then out but this court did not say going forward mr wells is never entitle to that type of a deviation this court recognize that based on the evidence the trial judge abused his discretion in not giving a downward deviation when he issued his decision in august of two thousand and twelve the evidence was in counsel says well we only spent about ten minutes on that i would assert here honors that once that door is opened that a trial court can reopen evidence when a very specific issue is reminded to the trial court we will encourage and increase the wood to just nature of the parties because we going to have to then read defend an evidentiary hearing each time an issue is reminded back to the trial court this is a unique situation because of the family law case and certainly the trial court always has jurisdiction to reconsider issues going forward but in this instance the appellate court opinion very clearly sets forth that the trial judge had all of the tools and information necessary to make a determination on a downward deviation petitioner made substantially more income the children's needs were being met mom received two tax exemptions and mom agreed in two thousand and seven that regardless of what the child expenses were she was going to do actually what she testified to doing which is work hard to make sure those expenses are paid and so i would assert your honour's the trial court had what it needed to make that determination of  essentially says because of the luxuries that she wants to bestow on her children she now is not meeting her need her testimony actually in november of two thousand and fifteen all of her needs were being that even the trial court says well it's really a quandary of what is a need and what is a desire i would assert here honor so that in this instance the petitioner made an employment change she still makes a substantial income the needs of the children are being met and while counsel might say twelve hundred dollars a month is not a windfall i would assert to your honor's that it is and that it is a significant reason for this court to again to remain and the issue of the downward deviation in this case and also find that the trial court's determination that there was a substantial