# Oral argument — In re Marriage of Sturm > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A21143 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** February 7, 2012 ## Text Good afternoon, please be seated This is our last case today And it is case number four one one zero five five nine where the marriage of Lori and Jeffrey Sturm for the appellant Tom Brucker for the FD Robert white record Good afternoon, I Represent the appellant Laurie Sturm this case, which is a Dissolution of marriage case it comes back before you Which was previously before the fourth district appellate court under general number four days ten days zero one one four In which the appellate court reversed this matter back to the trial court and remanded it It reversed it on an issue regarding a life insurance policy It remanded it for the trial court to take another look at the maintenance issue We had asked for permanent maintenance in this case The salient facts are my client had been married to her husband for 31 years They were both working for thriving financial and they earned approximately a hundred thousand dollars apiece selling insurance contracts, etc Back in 2008 my client started having some mental and emotional health problems and In July of that same year her 22 year old son died unexpectedly She started prior to the son dying she had sought sought the help of a psychiatrist or a psychologist and for these depressive moods the psychologist had been seeing her all this time throughout even the course of the tendency of the divorce proceedings and The psychic psychologist in his report, which was admitted to evidence indicated that the son's death exasperated her further emotional and health issues She went from The requirement for thriving financial was making thirty thousand dollars Productivity a year she went from 30,000 on down to her last one was around 17,000 she had a Letter of warning basically saying now she worked for thriving financial for 25 years She knows she knows what it was all about She got a warning saying if you don't get this back up to productivity you could be subjected to termination She applied for disability as a result of her mental and emotional state at that time and She received disability from her employer and In my brief I encountered in terms of a downward spiral Just previously to the son's death it started on a mental and emotional Downward spiral spiral of my my client which ultimately ended on her getting on disability and The court when it was remanded back for permanent maintenance In my opinion did a very veiled attempt at applying the five five oh four standards The Evidence was overwhelming of this Downward spiral you cannot you couldn't negate the fact that her son had died You couldn't negate that the fact that her didn't they both have a downward spiral They were both doing real well, and then all of a sudden now they're both in trouble No, and all in all due respect the the husband Got fired from his job thriving for I Think the couch in terms of technicality He did then got another job, which would put him back up to that same range I think eventually that's what he would be receiving My client eventually that's what he'll be receiving so you're predicting what the future's gonna be Well, he was he was at a lot more Earning capacity than my client was at the time the divorce was ended and He had no health issues he got on to another company doing the same type of business and His earning capacity was much much greater my clients earning capacity just continued going downhill until it hit bottom and so In Applying in applying I the trial court. I don't think gave much weight To those factors that were out there. How do we criticize the trial court for not giving weight you know it? That's the trial courts call and it's the way the evidence it is and that's But I think it's his call was against the manifest way of the evidence. I think it was I When you applied the evidence there I Think the trial court was totally ignoring that mental state he the trial court did not put much creedence in our psychologist psychiatrist report psychologist report Didn't put much creedence the fact that the son had died didn't put much creedence in the fact that even the employer recognized her problem and put her on disability now if The employer can recognize it. There's something a miss here when when when you put all those Capitalized capitalized together why this trial trial trial court could not see where this was going and then Then I think the trial court did not take in consideration this 31 year old marriage I cited the heart decision, which is part of the seminal case it started the Would Would we say that? No, reasonable person could have come up with the decision the trial court came up with that's what I'm saying Yes, I think it was arbitrary. I think it was unreasonable when the evidence was presented there, I think it was I Don't think the application of 504 was was was sound in its analysis by this trial court I Am just sort of amazed at that argument So what that you don't think it's that way what specific facts can you point to is there a complete absence of evidence Supporting the trial courts to see There was no there was no evidence to rebut this evidence of her mental state Well, there's no dispute that she She was disadvantaged as you say, but again there there was also evidence that he was disadvantaged He'd lost his job but that was not because of the sons Or his mental state or anything like that. That wasn't because of technicality. I think he was Xeroxing signatures that were not Authentic signatures their reproduction where the SEC that was an SEC violation, so that's where he got terminated It was not because of his mental Capabilities. Oh, well it makes a difference I'm sure as to what happens in the future, but the fact is he lost his job And he received another one real fast. He got another one real fast doing the same type of work But doing at a less lesser rate in it It was not at the hundred thousand dollar level I thought it was like it was at thirty thousand That's right, but it's earning less. Yeah, but his earning potential was Was much greater there Potential that's correct, and I think the case law says what is the earning capacity or potential here? I think that that's what the court has to look at as well in making that determination for maintenance issue My client went the other way And So my client is down here the playing field has tilted Based on the weight of the evidence to where my client. It's gone down my clients down here And he's up here yet, and so I think aside the case law started with heart and on down to Drury my client has never been able to get back on her feet and When you take in when you punch in that 31 year old marriage and I think most case law says when you apply the 504 and the year of the marriage and the middle state and everything else all those factors have to be weighted I think you just In my opinion just it doesn't come out that way as far as what the judge should have applied here The Cases I think support even in Drury case where Justice Garment talks about There's more than just Coming up to equal equality here. You've got to have an independence of financial independence, and that's something I don't think Based on a psychiatrist psychologist report she cannot function she cannot put things together and organize And everything else she cannot do that anymore and so her to attain that financial independence is almost Prohibited From the weight of the evidence so we believe there was a Manifest Weight of the evidence was tilted Deciding maintenance could the trial court take into Account the award of the insurance policy and insurance proceeds to the wife That that was that's something they could do that was not decided ahead of time I Think Exhibit number 11 showed where she had taken that insurance policies and paid off numerous bills and Those bills I think there was over $12,000 attributed to The husband's credit cards, and they went on a Mexican trip together and everything else so all that was used up she got down to where it was a $50,000 situation and Fifty thousand dollars on a 31 year old marriage where where she's going down to zero and he's gone from 30,000 on up In my opinion is not is not what the level playing field is supposed to be 50,000 that he's only making 30,000 But he also inherited 150,000 from his dad His dad just recently died so he had the capabilities of providing maintenance. He got the family home That was split out. He had to pay her over, but he got the family home She had she moved out ahead of time went to an apartment that had no heat and water for a while so her path to Getting back on the right track has been Enormously constricted compared to what his path could be So we'd ask that this First I was up here. I thought perhaps the appellate court would reverse it back for a maintenance issue At this time I would like to set as his appellate court to reverse it back And if we have to to put a price on what that makes its issue if you see it in our favor Thank you, you'll have your rebuttal mr.. White You May it please the court counsel just a couple of things off the bat I When I look at my own brief I found two things on page four of my brief At the bar in the fourth paragraph of the argument it says the trial cut the clinical counselors letter is heresy That's not even spelled correctly, but it's supposed to be hearsay. I Apologize for that And and mr. Brucker pointed out to me today that the very last page of my brief is it an email that somehow got shuffled into that and Isn't supposed to be there, and I apologize for that I'm more embarrassed about it because the fact that the email in fact is an email from a client of ours Who's complaining about me? so Anyway, not a very good job of proofreading In order to get to that point a couple of things If the court Would note in the appendix of the appellant's brief on page 44 There's an exchange between Mr.. Brucker and Judge Pacey about exhibit number 17 which Mr.. Brucker has been referring to as the basis for the evidence of this woman's problems and The the back-and-forth is the argument about whether that was ever admitted into evidence and the final word by Judge Pacey the court Actually the docket does not reflect that exhibit 17 was admitted into evidence so a Significant part of the argument that this court has heard already is based upon the only the only document That was put into evidence to indicate any kind of medical problem for this woman or mrs. Stern Second just to put a finer point on it the Author of the letter which was exhibit number 17 Which was marked as exhibit number 17, and I honestly as I read it. I made a note to myself I'm not exactly sure what judge Pacey meant he is Docket shows exhibit 17 was not admitted or Maybe it just reflects or doesn't reflect that it was I don't know if that's if that's a difference or not, but anyway The author of the of the letter is not a psychologist. He's not a psychiatrist He's a counselor so we don't have any evidence from a medical doctor as to Or a psychiatrist or a clinical psychologist as to what this woman's problems are and Judge Pacey Looked at that when it was Offered To the court and I Objected I can't cross-examine a letter And Judge Pacey also said eventually that it didn't impress him enough to be Something upon which he would base an award of maintenance now Didn't the report of proceedings and agreed statement of facts say that the parties agreed that a copy of a psychologist specialist report was as people's exhibit petition exhibit number 17 I Would have to go back and read that I'm not sure that that this is pretty important matter isn't it is it is you're Running to us now that somehow this wasn't property before the choke Trial judge All I'm saying is what the court said when we were there for the re-argument I know but that's not in fact what the agreed statement of facts signed by you Said is it? For the first field I Have that with me, and I if the court I defer to the court yes Well, then the trial judge was wrong wasn't he and you didn't correct him When he said this wasn't properly before me Or I was wrong Well, and you didn't correct him when he Misspoke that it was now the weight to be given to it is one thing But I was properly admitted to evidence according to the agreed statement of facts I don't disagree with that The argument also it was made a minute ago that the There was a new job for my client mr. Sturm and mr. Sturm had a the ability to make The same amount of money at the new job that he'd been making at the other job There's no evidence of that before the court. There's evidence that he had a new job. We put into evidence some Indication of what he had made over a period of four or five months From beacon insurance we also put into evidence some information about some Final Commissions that he would get from thriving, but there was certainly nothing before the court to Indicate that he was going to be Soon able to make a hundred hundred thousand dollars a year or that he would ever be able to make a hundred thousand dollars a year again The This Court And mr. Brucker and I and the judge had a discussion about this in the rehearing my understanding was the court said we do not reach the issue of maintenance go back and review the 504 factors In light of what we have said which is that the $175,000 the death benefit from the insurance on the son is non-marital property The And non-marital property of the mother Mrs. Sturm because that was she was the beneficiary of the policy. I think that's what judge Pacey did He asked mr. Brucker and me both at the beginning of the re of the rehearing to commit to the 504 factors that were Considered by him and the ones that weren't and we agreed that factors four or five nine ten eleven and twelve were not applicable in this case and that the Factors one two three six seven and eight were the three factors that judge Pacey would be Would be looking at as he made his His decision in this case. I don't understand. I Really do not understand what Mr. Brucker means When he talks about a veiled attempt to apply the 504 a factors this is exactly what this court ordered judge Pacey to do go back and look as Judge Pacey indicated the appellate court frequently does to for trial court judges He went back He reviewed them there's nothing ominous or dark or in any way implying any sort of Arbitrariness about the way the judge the trial judge did this at least in my opinion You agreed that the only factors that applied were six seven eight. No We agreed one two three six seven. Okay The and obviously number one right off the bat Raises an issue because in the initial determination that was made by judge Pacey he had found that the Insurance proceeds the hundred seventy five thousand dollars were marital property and he Gave the remaining fifty thousand dollars to mrs. Sturm in lieu of maintenance now When and of course, mr. Mr. Brucker argued then is now That well, mr Sturm inherited hundred fifty thousand dollars from his family when his when his father died he and his siblings two of them divided up Their farm ground and it was four hundred fifty thousand dollars divided by three now with the This matter being sent back and with the this courts admin or this court's mandate to judge Pacey he has to look at number one of 504 a The non marital property of each party She has a hundred seventy five thousand dollars. He has a hundred fifty thousand dollars So that changes it somewhat the evaluation of this of this matter I think what judge Pacey did in fact for two three five two and three six seven and eight Basically is that he he went back and looked at them and came to the same conclusions He had the first time it was judge Pacey not this court regarding the initial sudden settlement or assessment here who said he was denying maintenance in lieu of the Insurance Yes, doesn't that suggest that the insurance award was being made maybe he'd want to reconsider Well, perhaps on the on the other hand I would argue that Nothing had changed in so far as what she received from Before until we went back She still had the $50,000. We just called it something different Well, the point is it was his term that suggested. Maybe this might make a difference Yes, I don't disagree with that She testified To a certain extent contrary to what has been argued here you've done a lot of research in this case I have done Some research, I'm not sure what the court is getting at Have you ever come across a case of a 31 year marriage in the last 20 years where maintenance was denied? I have not come across a case where maintenance was denied in the kind of situation That mr. Brucker talks about in art Where you have someone who had to Lots of opportunities or where you had someone who had been a homemaker for 30 years and had raised the four children And made a wonderful home or perhaps helped with mr. Sturm in this case through college We know from the testimony at trial in this case that mrs. Sturm was the one who was selling insurance for thriving for Lutherans in the first place My client I believe was a carpenter And she's the one who got him into the business in terms of the marriage There was a long period of time when they were each making six figures And she didn't forego anything as far as I can tell there certainly wasn't any basis that she had to be To be rehabilitated at this point in her life She testified that while She wasn't now actively selling insurance She was still keeping an office servicing some of her clients and didn't intend to quit Now she'd also testified that she gave away part of her book of business. I My guy There's no doubt that what mr. Brucker says is true that it had been a practice among Both my client and his wife and some of the other thriving people according to my client that In order to be in order to make it convenience for a convenient as a convenience for their clients Who wanted to make investments and do so quickly they were using Xerox's of their signatures mr. Brucker described this client as being in a downward spiral Physically I don't think there's any evidence other than what she said of a physical Downward spiral she said it she has this other psychological consult whatever his credentials Is there anything else? contesting it The As In so far as evidence before the trial court. There's no other evidence other than what she said He does Yes He does to a certain extent he is Indicated that he doesn't think that She'll ever be able to return to her original level of functioning Well, it says actually within the next 12 months if ever But she says she's still keeping her her her office and servicing some of her clients and doesn't intend to quit As well as talking about her health mental and physical both Setting maintenance requires Courts to as best they can look into their crystal ball for the future doesn't Yes to a certain extent what is the crystal ball show for your client, what does it show for her? As of now I don't know what it implies what it might show for my client other than what I just said that he's indicated that he Has a job Similar to what he was doing before He had some Restraints on what he could do because of his contract with Thriven that for instance he couldn't sell Products that were the same as what he sold for Thriven Pekin used to be Pekin Auto He could sell auto insurance because I don't think Thriven did that but in terms of investment products and life insurance And so on he wasn't able to do that for a two-year period But in in her case. I don't think we know at this point. I don't know What has happened since we were here last with her The wife or the judges order Talking about where the hundred and seventy five thousand dollar life insurance policy went Refers to her spending nine thousand dollars for a vacation to Mexico is it true that he went on that vacation? They spent money on Paying off the late son's debts They and that's an exhibit number 11 They spent money on paying some debts of their daughter who's younger Who at the time we were in court I believe was a senior in college She bought herself a new car. She paid off some debts of my client She took a substantial amount of money at least so far as I could see Well, there's no setting up her own was it the trial judge's order, and I thought that was a criticism of the wife She spent nine thousand dollars on trip to Mexico, but it was a joint trip Right now. I didn't think it. I don't think he attended that okay, I Think in this case And I know judge justice Steigman he asked me the same question the last time It's a case where Judge Pacey Heard the witnesses and Looked at the exhibits and came to the same conclusion twice I Think he was That's correct I Don't think so because of what he said the first time That it was hearsay and that it didn't convince him I don't know why We would assume it would all medical reports are hearsay that are admitted by Stipulation That's correct We believe that he was correct the first time that this is a determination that Can be made by a reasonable man judge Pacey and that it should be affirmed. Thank you. Thank you rebuttal, please I go back to this hard case because it's kind of the similar case to start everything and make justice time it said Use the term outrageous at one point in time and I kind of believe that This case as well and and justice time and also Talked about it is inequitable upon dissolutions to saddle petition with a burden of her reduced earning potential And to allow respondents to continue in the advantageous position he reached through their joint efforts Now this is a classic case this goes back to the 1990 and everything is gravitated on further to where? It's not just rehabilitative a maintenance But it's permanent maintenance up to the point where justice garment as they indicated before where you have to have this financial independence Exhibit number 17 was admitted into evidence that was agreed upon by the agreed statement of facts on the first appeal There was no issue there I Don't I don't know why and to corroborate the That exhibit number 17 I think I argued before When you take what corroborates at most is the fact that her productivity level went down There was an exhibit to show that she was warned about that productivity There's an exhibit to show that then she went on disability. There's an exhibit to show that that's all in evidence that corroborates This site site counselors report, but the trial court saw and heard the witnesses doesn't you get to make the decision? The trial court is saddled with making that decision if the trial court totally ignores that that evidence and And from the opinions here. I don't know what what the trial court was was. I don't think number one I don't think any trial court likes to be reversed by this appellate court, and he commented about that at the opening aspect of his order And you know I don't know what there is nothing more difficult for a trial judge Than to get a remand from the appellate court Do you blindly assume? Follow whatever you assume the appellate court was telling you to do, or do you think about what you're doing and? The idea that oh the appellate court told me to do X. I guess that's what I need to do I Don't think that's the way the trial court should be doing things the trial court has to make its best effort And it is a very difficult Question for the trial court did the appellate court order me to do this or did the appellate court? Want me to rethink it well if you look at that transcript There was a colloquy back and forth between the judge and I exactly what the appellate court meant now Maybe I read too much into what this appellate court meant the first time around, but I thought it says hey We're going this one way now take a look at the maintenance issue and here's instruction instructive Analysis to help you out now. I think he just told him he just totally ignored that and I think he already had his mind Say that buddy. I think you already had his mind made up. He heard the first time around nothing you change nothing You change whatever from the first time around and so The corroboration was there we believe there's a grossly manifest Justice here, I think the way this true. She's still working. She is on him. She's Cleaning houses, that's what she does she still have some of her insurance accounts. She's given them all away. Yes. They took it away from What council said? Was was not correct about what I thought he said that she still had some of her account She she had some at the time of the divorce, and then she was going on that disability That's exhibit there, but they took it all away and gave to somebody else and so she was discharged and now she's clean house This is the playing field that my client is on Outrageous is a great term in my opinion And I ask you to reverse it. Thank you. Thank you, Mr. Brucker. Thank you, Mr. White. The case is submitted. The court stands in recess until 9 a.m. tomorrow. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A21143. Public record. Not legal advice.