MARSHAL: PLEASE RISE . PLEASE BE SE ATED.

CHIEF JUSTICE: NE XT CASE ON THE MORNING'SCAL ENADORE IS Z OLD VERSUS Z OLD. PARTIES REA DY ?

YES, MA'AM. P LEASE THE COURT, I WOULDLIKE TO RES ERVE FIVE MINUTES OF MY TIME FOR REBUTTAL. IF IT PLE ASE THE COURT, MYNAME IS NO RMAN D LE VIN. I AM COUNSEL FOR AMY ZOLD IN THIS MA TTER AND COUNSEL IN THE B RIEF REL ATED TO THIS MATTER.

WOULD YOU ADDRESS THE EXPRESS AND D I RECT CONFLICT CASES?

I AM SORE I IF , YES, THAT IS EXAC TLY WHERE I WAS GOING TO GO. YOU WANT ME TO SKIP O VER THE FACTS AND GO RIG HT TO THE ISSUE.

WE ARE FAMILI AR WITH THEFACTS.

OKAY.YOUR HO NOR , THE CONFLICT IN THIS CASE , HAS TO DO WITH ASERIES OF CASE S THAT HAVE BEEN DECI DE D OVER THE YEAR SINCE 1990. OVER THE YEARS SINCE 1990. IN 19 90, THE ZIPPERER CASE WAS DECIDED IN THE FIRST DCA.IN THAT CASE, THE TRIAL COURT FA ILED TO INCLUDE PASS-THROUGH IN TEREST D AVID DIVI DEND AND BU SINESS INCOME , WHICH HE PAID ON THE TAX RETURN . HE PAID THERE WAS A LOSS PAID OUT AND THE TRIAL COURT REVERSED .

THAT WASN'T IN A SUBCHAPTER S CORPORATION. HE HAD A FINANCIAL PLANNING BUSINESS AND SOME MUTUAL FUNDS.

IT DID NOT INDICATE IN THE FACTS OF THE OP INION AS TO THAT, BUT I SUBMIT THAT THE ISSUE IS IDENTICAL AS TO THOSE MATTERS. THE HUSBAND 'S CLAIM IN THAT CASE, WAS THAT IT WOULDCREATE A LOS S AND THAT THE TRIAL COURT HEL D THAT THAT WOULD BE IRRELEVANT IN THAT PARTICULAR CASE . THE NEXT CASE WAS SEW HACK I OUT OF THE FIRST WAS ZOHACKI OUT OF THE FIRST D CA, A LSO , WHERE THE TRIAL COURT REFUSED TO INC LUDE NONMISS BUSINESS INCOME. THE TRIAL NONBUSINESS INCOME. THE TRIAL COURT R E VERSED AND THE TRIAL COURT WAS ORDEREDTO REVISIT THE ISSUE , WAS THE TRIAL WAS NOT BOUND TO RELY UP ON THAT AND IT FELT BOUND TO RELY UPON IT AND IT DIDN'T HAVE ANY OTHERCHOICE.

HOW DOES THAT CONF LICT WITH ZOLD , THEN , THE CASE BEFORE US?

IN THAT PARTICULAR CASE, THE HUSBAND'S CLAIM THAT HE ONLY RECE IVED THE LE SSER AMOUNT WAS NOT BINDING ON THE TRIAL COURT AS A FINDER OF FACT.IN THE ZOLD CASE, THE TRIAL COURT INCL UDED THE RETAINED INCOME IN THAT MATTER WHEREHE WAS THE MAJORITY SHAREHOLDER, IN CONTROL OF THE OP ERATION , OPERATING THE BUS INESS, AND WHERE FIND INGS INDICATE THAT THE TRIAL COURT DIDN'T BELIEVE THE H USBAND AND HIS WITNESSES A BOUT THEIR TRANSACTIONS. THE FI FTH RE MANDED IN THAT CASE, AND THE WORDING OF THE REMAND WAS FOR FINDINGS ASTO THE AMOUNT O F INCOM E AVAILABLE TO HUSBAND FOR SUPPORT PURPOSES , WITHOUT CONSIDER IN G ANY UNDISTRIBUTED SUBS INCOME TO SHAREHOLDERS, UN LESS IT CAN BE DEMONSTRATED THAT THE BUSINESS DELA YED DISTRIBUTIONS OF CAS H, FOR PURPOSES OTHER THAN CORPORATE REQUIREMENTS.NOW , I SUBMIT T O THE COURT THAT, WHEN YOU L O OK AT ALLOF THE CASES TO GETHER THAT I AM GOING TO DISCUSS WITH YOU , THAT WHAT WE ARE TALKINGABOUT IS A BU RDEN ISSUE THAT IS INCONSISTENT IN THESE OPINIONS. THE QUESTION IS , WHO IS IT THAT HAS THE BURDEN OF GOING FORWARD TO SHOW OTHER THAN THE DOCUMENTARY EV IDENCE INDICATES, AND LET ME G IVE YOU AN EXPLANATION OF THAT. IN THIS CASE , IN THE ZOLD CASE , WE PUT INTO EVIDENCE , THE CORPORATE TAX RETU RNS . THE CORP ORA TE TAX RETURNS O N THEIR FACE, SHOW INCOME LESS ORDINARY AND NECESSARY EXPENSES. THAT IS THE DEFINITION.

EXCUSE ME. IT DOESN'T SHOW, IN FACT , EXPENSES. IT SHOWS THOSE ALLOWABLE DEDUCTIONS, DOES IT NOT?

I AG REE WITH THE COURTTHAT, IN FACT , THE DEFINITION, AND I THINK WHAT YOU ARE GE TTING AT IS THAT THE TAX DEF INITION AND THE SUPPORT DEFINITION NEED NOT BE IDENTICAL .

THEY CAN NOT BE FOR TAX PURPOSES. I MEAN, FOR EXAMPLE , IF YOU HAD A BUS INESS THAT YOU HAVE THE FLOW-THROUGH , THE SUBS KIND OF SI TU ATION, AND ENTERTAINMENT , FOR EXAMPLE , IS AN AB SOLUTE NECESSITY OF THAT BUSI NESS. THAT IS NOT 1 00 PERCENT DEDUCTIBLE BY A CORPORATE ENTITY, AND THOSE DOLLARS ARE GONE ,,YOU REALLY GET INTO TR OUBLE WHEN YOU USE FACE OF T AX RETURNS FOR

YOUR STATEMENT THAT YOU GET INTO TRO UBLE WHEN YOU USE FACE OF TAX RETURN , THE OTHER ISSUE IS THAT THE FACE OF TAX RETURN EVIDENCE IS THE EVIDENCE IN THIS CASE AND THE EVIDENCE OVER ALL.

LET ME ASK YOUR PO SITION ABOUT ASCR IBE ING INCOME TO THE CORPORATION TO THE INDIVIDUAL, TO THE STATUTE AWARDING ALIMONY AND ATTORNEYS FEES , SE CTION 61.046, WHICH SAYS THAT ANY FORM OF PAYMENT TO AN INDIVIDUAL, REGARDLESS OF SOURCE , IS DETERMINED T O BE INCOME. NOW, HOW IS THE INCOME TO THE CORPORATION NOT TO THE INDIVIDUAL, THAT I S NOT PASSED THROUGH TO THE INDIVIDUAL , A FORM OF PAYMENT TO THE INDIVIDUAL?

I HAVE TO HAVE YOU GO B ACK AND LO OK AT THE HISTORICAL DEVELOPMENT OF THE CASE LAW UNDER THAT STATUTE .

BEF ORE YOU GO INTO THE CASE L A W.

YES, SIR.

WHAT , UNDER THE PLAIN WORDS OF THE STATUTE, WOULD ASCRIBE A PA YMENT TO THE INDIVIDUAL?

WELL , WE HAVE T WO DIFFERENT STATUTES , AND , OFCOURSE, YOUR HO NOR I S FOCUSING ON 61.046 , BUT WE , ALSO, HAVE 61.30 , THAT GIVES YOU A DEFINITION THAT SUPPLEMENTS THE UNDERSTANDING OF WHAT THE LANGUAGE MEANS I N THE OTHER S ECTION. I SUBMIT TO THE COURT, THAT THIS COURT OR ANY OF THE APP ELLATE DISTRICTS , HAS EVER MADE A DIST INCTION IN THE DEFINI TION, BETWEEN THE DEF INITIONS IN 61.30 AND THE DEFINITION IN 61.046.IN FACT , IN ZIPPERER , I T SPECIFICALLY C I TES 61.046 AS INCLUDING THIS KIND NEVER COME.

BUT ZIPPERER DIDN 'T F O CUS ON THE WORD PAYMENT? IT FOCUSED ON THE P HRASE "REGARDLESS OF SOURCE".

ZIPPERER AND SO HACK I , BOTH , REFL ECTED ON THE DEFINITIONAL SECTION THAT WE ARE REFERRING TO. BOTH OF THEM HELD THAT THAT DEFINITION INCLUDED THOSETYPES OF SITUATIONS. I F YOU D E TERMINE THIS CASE BASED UPON A S PLIT OF DEFINITION, WHICH , OBVIOUSLY , YOU MIGHT HAVE AN ABILITY TO DO THERE TO DO HERE , IF YOU CHOOSE THAT ROUTE, THEN WHAT YOU ARE GOING TO TELL US IS THAT IN EV ERY ALIMONY AND CH ILD SUPPORT CASE , WE HAVE TWO SEPARATE AND COMPLETE DISTINCTIVE DEFINITION TO SAY CONSIDER. I DON'T BELIEVE THAT THATWAS THE INTENT OF THE LEGISLATURE.I DON'T BELIEVE THE LATTER DEFINITION FOR INCOME USEDIN THE STATUTE , IS 61. 30. IT CAME A FTER THE IN ITIAL 61.046.

WHAT IS THE DEFINITION IN 61.30?

61.30 HAS A SPECIFIC DEFINITION, AND BY THE WAY , DON'T FORGET IN 61.046 , IT IS NOT LIMITED TO THAT LANGUAGE. IT INCLUDES , NOT INCLUDES ALL OVER ALL OTHER , BUTIN 61.30 , THE LANGUAGE SPECIFICALLY PROVIDES THAT , 61. 30, I BELIEVE IT IS THREE , IT SAYS SPECIFICALLY , BUSINESS INCOME IS INCOME , AND IT SPECIFICALLY SAYS CLOSE CORPORATION INCOME , AND IT SAYS IT IS THE AMOUNT OF GROSS RECEIPTS LESS ORDINARY AND NECESSARY BUSINESS EXP ENSES .

SO ARE YOU, THEN , ADVOCATING ,,SAYING AND YOU WOULD LI KE US TO SAY THAT WHEN WE HAVE INCOME FROM ANY SUB S CORPORATION , ARE YOU SAYING THAT SOME OR ALL OF IT SHOULD BE RET AINED FOR BUSINESS PURPOSES?

I HAVE NOT SAID THAT IN MY BRIEF. I BELIEVE THAT SOM E OF THE HISTORICAL CASE LAW COULD BE READ THAT WAY . BUT EVE N IF YOU DON'T READ IT THAT WAY , I SUBMIT TO THECOURT THAT THE DEFINITION I JUST CITED TO , IS HONOR - - TO HIS HONOR , THAT DEFINITION DEALS WITH THE PROBLEM , AND I SPOKE OF THAT

THEN BR EAK BREAK IT DOWN A LI TTLE MORE CLEARLY THEN.

SURE.

WHAT IS YOUR POSITION? IF YOU ARE NOT TAKING THE ABSOLUTE POSITION THAT ALL OF THAT SHOULD BE CONSIDERED AS INCOME TO THE SHAREHOLDERS, THEN, WHAT P ORTION OR HOW D O WE DETERMINE OR HOW DOES THE TRIAL JU DGE DETERMINE WHICH PORTION SHOULD BE AND WHICHPORTION SHOU LD NOT BE ?

THE DEFINITION OF GR OSS RECEIPTS MINUS ORD INARY AND NECESSARY BUSINESS EXPE NSES , DEALS WITH THIS ISSUE. IT IS A DEFINITIONAL ISSUE, WHICH IS A MATT ER OF FACT. THE EVIDENCE THAT WAS PUT IN IN THIS PARTICULAR CASE , FOR EXAMPLE , THE TAX RETURN , STARTS YOU OUT I N THAT DIRECTION.I SUBMITTED THAT POINT , IFTHERE IS A NEED TO RETAIN ANY INCOME IN THE COR PORATION, THAT I T BE COMES THE BU RDEN O F THE CORPORATE OWNER, THE PERSON IN CONTROL, TO CO ME IN AND SHOW THAT PART OF THE ORDI NARY AND NECESSARY BUSINESS EXPENSES, IS TO RETAIN A CERTAIN AMOUNT OF INCOME IN THE CORPORATION FOR IDENTIFIABLE PURPOSES.

WASN'T THAT WHAT THE FIFTH DISTRICT, IN FACT, DID , BY REMANDING IT?

ABSOLUTELY NOT. BECAUSE WHAT THE FI FTH DISTRICT SA ID IN ITS REMAND , WAS , AND I WAS IN THE MIDDLE OF SAYING THAT BEFORE , BUT WHAT THE FIFTH DISTRICT SAID, SAYS W E REMAND FOR FINDINGS AS TO THE AMOUNT OF INCOME AVAILABLE TO HUSBAND FOR SUPPORT PU RPOSES, WITHOUT CONSIDERING ANY UNDISTRIBUTED SUB S INCOME TO SHAREHOLDERS , UNLESS IT CAN BE DEMONSTRATED THAT THE BUSINESS DELA YED DISTRIBUTIONS OF CASH FOR PURPOSES OTHER THAN CORPORATE REQUIREMENTS.BY THAT REMAND , IT WOULD SHIFT THE BURDEN IN THIS CASE TO THE WI FE , TO HAVE TO COME IN AND PROV E AN IMPOSSIBLE THING , MEANING THE P E RSON HAS CONTROL. THEY HAVE

SO IF THE R ULE OF LAWTHAT CAME OUT OF THIS WAS THAT IT IS NOT A PER SE RULE OF LAW, THAT IS THAT RETAINED INCOME OF A SUBCHAPTER S CORPORATION , IS NOT 1 00 PERCENT TO BECONSIDERED INCOME , IF THE SPOUSE WHOSE INCOME IT IS , CAN SHOW THAT IT WAS RETAINED, THE AMOUNT RETAINED WAS RETAIN ED FOR A CORPORATE PURPOSE OR, AND THIS, I WA NTED , WAS REQUIRED TO RETAIN IT, BASED ON S ECTION 607.06401-3 , WHICH PROHIBITS DISTRI BUTION UNDER CERTAIN CIRCUM STANCES , FROM BEING MADE.WOULD THAT BE A SATISFACTORY RULE OF LAW?

AS LONG , IT W OULD BE A SATISFACTORY AND I BELIEVE , CONSISTENT WITH THE DEFINITION IN 61.30 , SO LONG AS THE EVIDENCE , THE EVIDENT IARY QUESTION WAS THAT THE BURDEN I S ON THE POSES O R OF THE KNOWLEDGE POSSESS OR OF THE KNOWLEDGE AND CONTROL , TO COME FORWARD AND SHOW THAT THE RETAINED EARNINGS ARE NECESSARY TO BE RETAINED , AS - - ORDINARY AND NECESSARY DEFINITION OF A BUSINESS EXPENSE, THAT BEING WHILE IN ADDITION TO OPERATING THIS BUSINESS , WE NEED TO KEEP AN EX TRA $50,000 IN THIS BISFEST IN THIS BUSINESS FOR OPERATION PURPOSES. THE PROBLEM WITH THAT IN THIS CASE , IN THE ZOLD CASE,IS THAT THE JUDGE DIDN'T BELIEVE ANYTHING THAT THEY SAID, AND IF YOU LOOK AT THEFINDINGS THAT ARE EXPLICIT IN THE FINAL JUDGMENT , IF YOU LOOK AT THE FINDINGS IN THE SECONDARY JUDGMENT ON ATTORNEYS FE ES, THE COURT SPECIFICALLY SAYS , I DON'T BELIEVE THE HUSBAND IN WHAT HE SAYS!

I THOUGHT IT WAS THE ISSUE OF THE DIS BELIEF HADTO DO WITH THIS IDEA THAT HE WAS ONLY A 4 0 PERCENT SHAREHOLDER.BUT IT LOOKS LIKE ALL THEJUDGE DID, IS TOOK ALL O F THE UNDISTRIBUTED INCOME AND CATAGORIZED THAT AS INCOME AVAILABLE TO HIM.

BECAUSE THEY DIDN'T SHOW ANY BELIEVABLE EVIDENCE TO INDICATE THAT THERE WAS ANYNEED TO RETAIN ANY EARNINGS IN THE CORPORATION.

IS THAT BASED ON ZIPPERER AND NOT WHAT THE FACTS WERE IN THE CASE BUT SIMPLY WHAT THE FACTS WERE IN THE FIRST DISTRICT.

ARE YOU TALKING ABOUT IN THE CL OSING ARGUMENT?

IN W HAT THE JUDGE DID. WHEN YOU SAY IT WAS BASED ON THE FACTS, BECAUSE HE DIDN'T BELIEVE WHAT THE HUSBAND SAID, W ASN'T IT B ASED ON THEFACT THAT THE JUDGE BELIEVED THAT YOU COULD TAKE THAT INTO AC COUNT IN DETERMINING INCOME TO THE HUSBAND?

I CAN'T SPECIFICALLY AGREE OR DISAGREE WITH YOUR COMMENT.I WILL TE LL YOU THIS, IN M Y CLOSING ARGUMENT , I SPECIFICALLY BROU GHT TO THE COURT'S ATT ENTION , THE CASES OF ZIPP ERER AND SOHACKI . OPPOSING COU NSEL BROUGHT FORTH NO OP POSING CASE LAW IN HIS CLOSING ARGUMENT. OPPOSING COUN SEL WAS QUESTIONED IN CLOSING ARGUMENT, AND THE QUESTION THAT WAS AS KED OF HIM , WAS , WHAT DO YOU HAVE TO SAY ABOUT THESE CASES, AND HOW THEY WOUL DN'T APPLY HERE , AND HIS AN SWER WAS , WELL , HE DOESN'T HAVE THE MONEY , A NDTHERE WAS ONE OTHER PIECE OF THAT ANSWER THAT HE G AVE , AND SO HE GAVE AN ANSWER TO THAT, AND THE COURT, THEN , WENT ON BEYOND THAT.

WHAT , LET ME ASK YOU THIS.

SO THE RE WAS NO REAL CONCESSION.

IN RESPECT TO YOUR BURDEN

COUL D YOU , I AM SORRY. I DON'T KN OW HOW TO READ THIS TIME CLOCK.

CHIEF JUSTICE: YOU ARE STILL OKAY. A YELLOW LIGHT WILL COME ON WHEN YOU ARE IN , AND I WILL REMIND YOU.

THANK VERY MUCH.

IN RESPECT TO YOUR BURDEN ARGUMENT, WOULD THERE BE , ISTHERE ANY PREDICATE PERCENTAGE OF OWNERSHIP OF ONE OF THESE CORPORATIONS THAT YOU HAVE TO HAVE BEFORE YOU HAVE THIS BURDEN?

CHIEF JUSTIC E: NO W THE Y ELLOW LIGHT IS ON . GO AHEAD.

NOW THE YE LLOW LIGH T IS ON. YOUR HONOR, MAY I RESERVE TO ANSWER THAT QU ESTION UN TIL REBUTTAL? LET ME ANSWER IT TO YOU THIS WAY. I THINK THAT THESE ARE ALL FACTUAL QUESTIONS AT THET RIAL COURT LE VEL.

I WANT TO KNOW WHAT THE RULE OF LAW IS GOING TO BE.

I THINK THE RULE OF LAW RELATED TO THIS MATTER , I S THE DEFINITION UNDER 61.30. THAT ANY INN COME INCLUDES THAT INCOME IS INCLUDES THE BURDEN

WHAT IS GOING TO C OME OUTIN THIS CASE A S TO WHO HASTHE BURDEN AND WHEN THAT BURDEN ATTACHES?

I BELIEVE , YOUR HONOR , AND I AM NOW TALKING ABOUT THE Mc CUE DECISION. THE McCUE DECISION SAYS CLEARLY MINORITY WITH NO CONTROL, THEN NO CONTROL AND NO WAY TO CONTROL IT IN THAT SITUATION , THEN THAT WOULD GOVERN AND I THINK THAT IS A FACTUAL SIT UATION. YOU MIGHT HAVE SOMEBODY WHO O WNS 40 PERCENT BUT HE HAS A CTUAL CONTROL O F AN OTHER SHAREHOLDER WHO WOULD VOTE WITH HIM TO CONTROL DISTRIBUTIONS AS WE LL. THAT FACT SIT UATION MIGHTAND MINORI TY SITUATION WAS WHERE AC TUAL CONTROL WASPRESENT.

IF YOU HAVE ACTUAL CONTROL, THEN , ALL INCOME O F THE CORPORATION HAS TO BE AS SCRIBED TO THE INDIVIDUAL , E VEN IF THE CORPORATION HAS LEGAL OBLIGATIONS THAT IT NEEDS TO USE THE MONEY FOR.

ABSOLUTELY NOT. IN THAT SITUATION, IF THEY COME IN AND THEY PROVE FACTS THAT INDIC ATE THAT IT IS AN ORDINARY AND NECESSARY REASON TO MAINTAIN THAT INCOME WITHIN THE CORPORATION, THEN THEY MEET THE DEFINITION UNDER 61.30, OF ADDITIONAL ORDINARY NECESSARY BUSINESS EXPENSES , AND THIS GETS BACK TO JUDGE LEWIS'S COMMENT ABOUT THE TAX INFORMATION IS A GUIDE TO START F ROM , BUT THEN THEYHAVE TO COME IN AND HE LP SHOW THE DISTINCTIONS.

JUST CLARIFY IF YOU WOULD.

IN MY REBUTTAL?

YOU MAY D O IT IN YOUR REBUTTAL. TO ADDRESS IT , WE ARE LOOSELY USING THIS WORD "RETAINED INCOME ". THAT F LAIS THAT PHRASE,AS IT IS KNOWN IN TAX PARLANCE, MAY REPRESENT DOLLARS THAT NO LO NGER EXISTWITH RE GARD TO IN SOMEBODY'S POCKET , AND SO IT SEEMS TO ME THAT IF WE START WERE TALKING ABOUT CONCEPTS LIKE THAT , IT EMS THAT ARE NOT DEDUCTIBLE FOR FEDERAL TAX PURSE, THEN WE START OFF WITH A FA LSE PRE MISE , SO HELP ME , I MEAN , IT IS MY UNDERSTANDING THAT DOLLARS ARE INCLUDED THERE THAT EXPENSES ARE ALREADY PAID BUT JUST NOT DEDUCTIBLE , SO.

WELL, IN THIS CASE , JUDGE, THE NUMBERS THAT WE ARE USING OFF THE TAX RETU RN , ARE FAR LESS THAN THE N UMBERS WHICH WERE INDICATEDOFF THE REVIEW WHICH WAS MAJA DENI ED YOU MEAN HERE , BECAUSE WHAT THEY DID WHICH WERE INDICATED OFF THE REVIEW , WHICH WAS , BECAUSEWHAT THEY DID THERE, THEY TOOK NUMBERS OFF THE CAP THAT SHOULDN'T HAVE BEEN TAKEN OFF, S O YOU HAVE ALL KINDS OF COMPLEX ANALYSIS THAT WOULD GO ON IN THIS TYPE OF CASE AND ALL OF THE B ASIC IN THE DATA IS IN THE HANDS OF THE CONTROLLER. THAT IS WHERE THE BURDEN NEEDS TO FALL , AS FAR AS GETTING OUT OF THAT. ONCE A PRIMA FACIE SHOWINGHAS BEEN MA DE OF THAT. THANK YOU VERY MUCH.

CHIEF JUSTICE: YOU SAVEDA LI TTLE T I ME FOR REBUTTAL.

IF IT PLEASE THE COURT , MY NAME IS CHARLES WILL ITS AND I AND I REPRESENT THE APPELLEE IN THIS MATTER , JOHN ZOLD. I KNOW THE COURT'S INTEREST IS ABOUT SUBCHAPTER S CORPORATIONS AND DISTRIBUTION OF THAT INCOME AND HOW IT SHOULD BE DISTRIBUTED.I F YOU LOOK AT THE CASES , THERE ARE OBVIOUS CASES WHICH HAVE BEEN CITED , CASES SUCH AS McCUE , W HERE A PERSON HAS A 10 PERCENTOWNERSHIP AND NO ABILITY TO CONTROL THE DISTRIBUTIONS. OBVIOUSLY THAT IS AN OBVIOUS SITUATION. THERE IS MARTINEZ , WHERE HE HAS 100 PERCENT OF OWNERSHIP AND RETAINS AND MAY HAVE M ORE FOR LEGITIMATE BUSINESS PURSE , BUT HE RETAINS MORE THAN AND THE COURT ORDEREDTHAT HE SHOULD , IN ORDER TO MAINTAIN SUPP ORT.

IS THIS A CASE BY CASE ANALYSIS RULE?

NO , Y OUR HONOR. I THINK IT OUGHT TO BE ABRIGHT-LINE RULE , AND I WOULD AGREE WITH JUDGE PETERSON IN THE ZOLD CASE AND THE ANDERSON CASE, WHICH HAPPENED TO OVER RULE A CASE THAT I LOST PREVIOUSLY AND THEY CHANGED THE IR MIND IN THAT CASE , BUT I THINK IT I S CORRECT WE NEED ABRIGHT-LINE RULE THAT WOULD BE WHAT THEY SET FOR TH. IF IT IS NOT FOR LEGITIMATE CORPORATE PURP OSES , AND IT CAN BE PROVED AS A QUESTION OF FACT BEFORE THE COURT , JUST AS ANY OTHER QUESTION OF FACT , IN ANAKANAKARIS.

THAT IS NOT MAINTAINED AS A BRIGHT-LINE RULE F IT APPEARS ON AN INCOME TAX RETURN, WHICH MOST OF US I N MOST OTHER SITUATIONS, IF IT IS ON THE TAX RETURNS, IT WOULD HAVE MEANT YOURECEIVED IT. IN SUBCHA PTER S , THAT IS NOT NECESSARILY THE CASE. HOWEVER , THE , SO THEQUESTION, THEN, IS , AS TO THE AMOUNT THAT STA YS IN THE CORPORATION, THAT IS N'T DISTRIBUTED , WHOSE BURDEN IS TO SHOW THAT IT WAS RETAINED FOR PROPER CORPORATE PURPOSES? SHOULDN'T IT BE ON THE PER SON WHO IS IN CONTROL OF THE CORPORATION, THE MAJORITY SH AREHOLDER , TO SHOW THAT THERE WAS LEGITIMATE CORPORATE REASONSFOR RETAINING THAT INCOME ?

YOUR HONOR , THAT MAY VERY WELL BE THE CASE.

IT LOOKS LIKE TO ME IN THE REMAND FR OM THE FIFTHDISTRICT THAT, THEY PU T THE BURDEN ON THE WIFE , TO SHOW THAT IT WASN'T RETAINED FOR LEGITIMATE CORPORATE PURPOSES , WHEN , WHEREAS I A GREED TO THIS EX TENT , AT LEAST IT S EEMS LO GICAL THAT IT SHOULD BE , WHEN IT IS A MAJORITY SHA REHOLDER, IN THERESPONSIBILITY OF THE MAJORITY SHAR EHOLDER , TO EXPLAIN WHY THOSE AMOUNTSWERE RETAINED .

I UNDERSTAND YOUR HONOR'SPOSITION, AND I PERSONALLY BELIEVE THAT THE CORPORATION IS A SEPA RATE E NTITY . IN FACT , RETAINS EARNINGS FOR WOR KING CAP ITAL FOR EMPLOYEES , FOR PAYMENTS OF WORKMANS COMP, FOR ALL OF THE THING THAT IS A CORPORATION HAS TO PAY, HEALTH INSURANCE , ACCOUNTS RECEIVABLE, A LL OF THE THINGS THAT JUDGE PE TERSON NOTICED IN AND SO N AND IN THIS CASE IN ANSON AND I N THIS CASE , REA LLY , MY PERSONAL BELIEF IS THAT THE BURTON OUGHT TO BE ON THE OPPOSING SIDE TO SHOW THAT THOSE CORPORATE EARNINGS ARE IN FACT, BEING RETAINED FOR PURPOSES OTHER THAN LEGITIMATE CORPORATE REASONS.

BUT DOESN'T YOUR EXPLANATION, REALLY , BELY THE ARGUMENT THAT YOU AREMAKING, AND THAT IS YOU ARE DETAIL ING NO W , VE RY LEGITIMATE REASONS FOR RETAINING THAT , AND IT SEEMS TO ME LIKE THAT WOULD BE HISTORY TO SHOW THAT IT HAS BEEN HE LD FOR THE CORPORATION'S EXISTENCE AND THIS AMOUNT OF INCOME RETAINED REALLY HASN'T VARIED THAT MUCH OVER THE YEARS AND IN FACT , HAS BEEN CONSUMED, YOU KNOW, FOR THOSE PURPOSES , AND THAT THAT , IS THIS REALLY SUCH A BIG DE AL, YOU KNOW , FORBEING ON THE INSIDE AND KNOWING ABOUT THAT , AS OPPOSED TO HAVING TO SORT OF HAVE A GRAND JURY INQUIRY, YOU KNOW, FRO M THE OUT SIDE , S O I AM SORT OF HAVI NG THE FEELING HE RE, WHAT IS THE BIG DEAL ABOUT SAYING THAT THE SHAREHOLDER SHOULD HAVE THE RESPONSIBILITY OF DEMONSTRATING , ON CE IT IS DEMONSTRATED THAT THAT INCOME IS THERE AND IT IS SORT OF SETTING THERE , BECAUSE WE KNOW THAT THEREARE GOING TO BE ALL KIND OF VARIATIONS. IN SOME SITUAT IONS, IT MAY BE SOMEBODY THAT SAYS , H AY , I WANT TO IN PLATE THAT , AND HEY, I WA NT TO INFLATE THAT, AND THEREFORE I WILL BE ABLE TO LI VE ON THAT VERY COMFORTABLY MYSELF , LATER N OTHER CASES, IT IS GOING TO BE THE 20- YEAR TRACK HISTORYTHAT SHOWS AS A MATTER OF FACT IN OUR JUDGMENT , REDIDN'T RETAIN ENOUGH IN THE WAY THAT WE DID THAT , SO IS IT S U CH A BIG DEAL TO SAYTHAT THE PERSON INVOLVED IN THE CORPORATION, SHOULD BE THE ONE THAT HAS THE BURDEN, ONCE IT IS DEMONSTRATED THATIT IS THERE , TO SHOW THAT THAT IS A LEGI TIMATE RETAINED

BASICALLY IN MY EXPERIENCE, YOUR HONOR, IT MAY BE A DISTINCTION WITHOUTA DIFFERENCE . SORT OF LIKE THE

SORT OF LIKE THE WAY WE USED TO TRY CASES, AS OPPOSED TO INSTRUCTING THE JURY ABOUT BURDENS, YOU E NDED UP SAYING IF YOU FIND B Y THE PREPONDERANCE OF EVIDENCE OR SOMETHING. HERE WE DO HAVE TO ASSIGN SOME RESPONSIBILI TY, THOUGH , IS I T , IS THAT SUCH A BURDEN?

NO , YOUR HONOR. I THINK A CORPORATION COULD E ASILY RIS E TO THAT BURDEN AND SHOW WHY THEIR F UNDS WERE NEED ED AND CORPORATE HISTORY TO SHOW THAT.

WOULD YOU LIKE TO TALK A BOUT THE STATUTES THAT ARE INVOLVED? WE HAVE GOT 61.0467, WHICH IS CONCERNING ALIMONY AND ATTORNEYS FEES, AND IT TA LKS ABOUT ANY FORM OF PAYMENT T O AN INDIVI DUAL.

Y ES, YOUR HONOR .

THEN WE HAVE 61.30 , THAT TALKS ABOUT BUSINESS INCOME, AND TALKS ABOUT G ROSS RECEIPTS MI NUS ORDINARY AND NECESSARY EXPENSES. COULD YOU EXPLAIN TO ME , HO W YOU SEE B OTH OF THOSE STATUTES WORKING , BECAUSE , AGAIN HERE, WE ARE TALKINGABOUT WHAT INCOME MEANS FOR PURPOSES OF ALI MONY AND C HILD SU PPORT , AND DO YOU SEE ONE OR BOTH OF THOSE STATUTES APPLYING AND ARE THEY IN CONFLICT , AND WHAT WOULD YOUR DEFINITION OF INCOME BE ?

YOU MEAN THE DEFINITION OF INCOME UNDER THAT BEING A GROSS RECEIPTS MINUS ORDINARY AND NECESSARY EXPENSES?

DOES THAT A P PLY , I MEAN , HOW DOES THAT S QUARE WITH THE 61.0 467 THAT JUSTICE CANTERO SPOKE ABOUT , WHICHTALKS ABOUT ANY FORM O F P AYMENT TO AN INDIVIDUAL? IS THAT SUPPLEMENT, HOW DO THOSE TWO STATUTES WORK TOGETHER?

WELL, YOUR HONOR, THERE IS NOT A PAYMENT UNDER SUBCHAPTER S CORPORATION , IF YOU RECEIVE A K -1 AND YOU DO NOT EVER RECEIVE THE INCOME.

SO THEN UNDER THAT , IFTHERE IS NO PAYMENT , DOES THAT EN D THE STORY AS TO WHETHER IT I S INCOME, IF THERE IS NO PAYMENT, OR DO YOU GO FA RTHER AND LOOK AT 61.30 , WHICH DESCRIBES BUSINESS INCOME?

WELL , I THINK AS JUDGE ANSTEAD , JUSTICE ANSTEAD , SO APTLY POINTED OUT , WE HAVE TO, THEN, GO TO WHAT THE BUSINESS REQUIRES IN ORDER TO OPERATE ON THE ORDINARY COURSE OF BUSINESS ON AYEARLY BA SIS . WHAT CASH HAS TO BE RETAINED . ONE OF THE PROBLEMS IN THIS CASE WAS THAT THE GOVERNMENT HAD HAD PREP AID $230,000-SOMETHING TO THE CORPORATION FOR THE LA MP L IGHTER PROJEC T ON THE F -16 , WHICH IT WAS NOT THEIR MONEY. THEY HAD TO HOLD IT IN RETAINED EARNINGS, TO BUY WIRE FOR FU TURE PRODUCTS AND LOCK IN THE PRICE.

I AM NOT SURE , YOU WOULD AGREE THERE ARE CIRCUMSTANCES WHERE , EVEN THOUGH THERE IS UNDISTRIBUTED INCOME , AND NOT DISTRIBUTION , SO THAT THERE WOULDN'T BE PAYMENT , THAT IF IT IS NOT BEING RETAINED FOR LEGITIMATE PURPOSES, IT COULD STILL BE CONSIDERED INCOME.

YES , YOUR HONOR.

SO YOU DO N'T, S O WE CAN'T APPLY A L I TERAL DEFINITION OF 61.0467 , WHERE OTHERWISEIT WOULD JUST BE LIMITED TO PAYMENTS .

WHICH, THEN, WOULD PUTPEOPLE IN AN UNTENABLE POSITION OF HAVING TO PAY SUPPORT , BASED UPON INCOME,WHICH IS PHANTOM INCOME . AND THAT IS WHAT I THINK HAS HAPPENED HERE , WHEN THE JUDGE ALL OCATED THE LO WER COURT $147,000 OF INCOME TO MY CLIENT WHICH HE NEVER RECEIVED AND WILL NOT RECEIVE.

I AM NOT SURE YOU ARESTILL ANSWERING MY QUESTION ABOUT THE STATUTES AND THE DEFINITION SET FORTH BY THE LEGISLATURE AND HOW THEY RELATE TO THE IS SUES IN FRONT OF US.

WELL, I UNDERSTAND THAT,YOUR HONOR , BUT I THINK ONEOF THE STATUTES YOU REFER TO TALKS ABOUT BUSINESS INCOME TO MEAN GROSS RECEIPTS MINUS ORDINARY AND NECE SSARY EXPENSES REQU IRED TO PROD UCE INCOME. I BELIEVE THAT CAN BE CONSTRUED TO REQUIRE YOUR ACCOUNTS RECEIV ABLE , TO FINANCE THOSE, YOUR LOANS AT THE BA NK , YOUR OBLIGATION T O YOUR EMPLOYEES AND THE OTHER THINGS TO KEEP YOUR BUSINESS RUNNING.

SO YOU WOULD A GREE , THEN , WITH MR. LE VIN, TO THE EXTENT THAT 61.046 7 IS MODIFIED BY 61.30 , AS RESPECTS THE BUSINESS INCOME?

I DON'T KNOW IF I AG REE THE WAY H E APP LIES, IT BUT I DO AGR EE TO WHAT I HAVE JUST STATED, YES , YOUR HONOR.

NOW, IN TERMS OF THIS CASE, YOU HAD , AND YOU UNDERSTOOD THESE OBLIGATIONS , WHY ISN'T THIS SI MPLY A SITUATION THAT THE TR IAL JUDGE JUST DIDN'T BUY THEFACT THAT EVEN THOUGH IT WAS RETAINED, THAT THEY WE REN'T ACTUALLY AVAI LABLE TO YOU? WHY ISN'T IT THAT THE FI FT H DISTRICT SIMPLY SUBSTITUTED ITS JUDG MENT, AS OP POSED TO ANNOUNCED A RULE OF LA W THAT WAS DIFFERENT. IN THAT, I WA NT TO KNOW DOYOU THINK THAT THE TRIAL JUDGE FEEL BO UND BY ZIPPERER OR WHATEVER IT IS , OR DID THEY JUST DISBELIEVE EVERYTHING THAT YOUR WITNESSES HAD TO SAY?

YOUR HONOR, I HAVE , THE JUDGMENT OF THE CO URT HERE , THE LOWER COURT , AND I DO NOT BELIEVE THE COURT FULLY UNDERSTOOD THE EVIDENCE IN ALL DUE RES PECT , TO HIS H ONOR I N THAT COURTROOM , WHEN IT MA KES STAT EMENTS THAT THERE ARE UNCONTRADICTED EVIDENCE THAT MY CL IENT O WNED 57 PERCENTOF THE CORPORATION, WHEN IT MAKES STATEMENTS IN THERE THAT MY CLIENT , IN FACT, IT WAS ILLEGAL THAT MR . ATASI'S INTEREST WAS NOT RECOGNIZED.

LET'S NOT GET INTO THE 57 V ERSUS 40 PERCEN T. WE HAVE GOT TO AS SUME THAT THE FIFTH DISTRICT UP HELD THAT PART OF THE , I AM A SKING YOU ON THE ISSUE ABOUT ATTRIBUTING 100 PERCENT OF THE RETAINED INCOME AS INCOME AV AILABLE TO YOUR CLIENT , TO PAY ALIMONY AND THE OTHER DISTRIBUTIONS. DID THEY , IS IT YOUR , WHETHER THE JUDGE UNDERSTOOD OR NOT , DID THE JUDGE FEEL B OUND BY PRECEDENT IN OTHER DISTRIBUTES?I MEAN, WHAT

YOUR HONOR , THE WAY I READ THE FIFTH DISTRICT COURT OF APPEALS 'S OP INION , T HEY SA ID THAT THE ALLOCATION BY THE LOWER COURT OF THE $147,000 AS INCOME TO MY C LIENT FOR PURPOSES OF A SUBCHAPTER S CORPORATION , WAS WRONG , AND THEREFORE FOR THE REASONSSET FORT H IN THAT OPINION, THEY OVERRULED HI M. IT WAS NOT A QUESTION OF FACT.

WH Y WAS , WHY COULDN'T THE JUDGE , B ASED ON THE EVIDENCE PRESENTED , FIND THAT ALL 147,000 DOLLARS WASAVAILABLE TO YOUR CLIENT?

I GUESS THEY COULD HAVE DONE THAT , YOUR HONOR. IT WOULD HAVE , ACCORDING TO THE CPA IN T HIS CASE IN THE TESTIMONY , BANKRUPTED THE CORPORATION.

SO DID YOU MAKE AN ARGUMENT AND THIS NOW GOES BACK TO A QUESTION I ASKED EARLIER ABOUT SECTION 6 ON 7 .0 SECTION 607.061403. ARE YOU FAMI LIAR WITH THAT STATUTE?

Y ES, YOUR HONOR.

THAT STATUTE AC TUALLY PROHIBITS DISTRIBUTIONS I F IT WOULD ABRUPT A CORPORATION.DID YOU MAKE THAT ARGUMENT? WAS THAT STATUTE CITED TO THE TRIAL JUDGE AS A REASON THAT YOU , YOUR, THE CORPORATION COULD NOT HAVE MADE DISTRIBUTIONS BASED ON THE FINANCIAL SITUATION OF THE CORPORATION ?

YOUR HONOR , I CERTAINLY BELIEVE I DID . THIS IS A FOUR AND-A-HALF-YEAR-OLDCASE, AND IT WAS A VERY HARD-FOUGHT CASE, AND WE ARGUED EVERYTHING IN THIS CASE, AND I THINK THAT WAS AN ARGUMENT . OBVIOUSLY WE ARGUED THAT THE SUBCHAPTER S CORPORATIONINCOME IS NOT DISTRIBU TEABLE AND WE ARGUED THE PERCENTAGE OF OWNERSHIP.

NOW GO BA CK TO THESTATUTE A SECOND AND THIS CASE , WAS THERE AN ISSUE OF CHILD SUPPORT IN THIS CASE?

YE S, THERE WAS. THEY HAD E QUAL TIME WITH THE CHILD , AND THE JUDGE ORDEREDTHAT HE PAY $502 A MONTH IN CHILD SUPP ORT.

WAS THERE AN ISSUE OF ALIMONY?

YES, YOUR HONOR. THE JUDGE ORDER ED $5 ,000 PERMANENT PERIODIC ALIMONY , W HICH IS WHERE THE PROBLEMS DEVELOPED IF YOU ALLOCATE THE SUBC HAPTER S INCOME TO HIM AND IT IS PHANTOM INCOME.

FROM READING THE STATUTE , IT SE EMS LIKE 41.067 IS THE DEFINITION OF INCOME FOR PURPOSES OF THE CHAPTER. IT IS THE DEFINITIONAL SECTION.IS THAT NOT RIGHT?

YES, YOUR HONOR.

AND THEN SECTION 61.08 TALKS ABOUT ALIMONY, AND THEN IT SAY S ONE THING THE COURT SHOULD CONSIDER IS ALLSOURCES OF INCOME AVAILABLETO EITHER PARTY, SO YOU NEED TO U SE THE DEFINITION OF INCOME IN 61.046 FOR ALIMONY , I SN'T THAT CORREC T?

YES, YOUR HONOR .

AND IT SEEMS ALSO , SHOULDN'T WE READ TO THE EXTENT POSS IBLE , 61.046 AND 61.30 IN PARI M A TERIA AND RECONCILE THEM TO THE EX TENT POSSIBLE?

WELL , OBVIOUSLY THAT WOULD BE THE OBJECTIVE OF THE COURT , I AM SUR E, NOT TO OVERRULE THOSE STATUTES, IF POSSIBLE . THERE HAS BEEN RECENT "BAR JOURNAL" ARTICLE THAT DISCUSSED THIS PARTICULAR ISSUE W HICH WE CITED IN OURBRIEF, WHICH WAS SOMEWHAT INSTRUMENTAL.

IT JUST SEEMS TO ME, IF THE DEFINITIONAL SECTION OF INCOME IN 6 1.30, WHICH IS THE CHILD SUPPORT STATUTE , WHICH DIFFERS FROM 61.046 , IT WOULD DIFFER IN AWARDING CHILD SUPPOR T AND NOT AWARDING ALIMONY, BECAUSE THAT DEFINITION DOESN'T A PPLY TO ALIMONY. SO WE MAY HAVE TO DIFFERENTIATE BETWEEN CHILD SUPPORT AND ALIMONY .

YES, IT WOULD, YOUR HONOR, AND THERE IS NO LONG AREA MINOR CHILD IN THESE PARTICULAR PROCEEDINGS.

LET ME, I THINK, I DON'T KNOW IF YOU ANS WERED THE CHIEF JUSTICE'S Q UESTION , F INALLY IS IT YOUR PARTICULAR POSITION THAT UNDISTRIBUTED INCOME CA NNOT BE DISTRIBUTED?

- - UNDISTRICTED IN COME SHOULD BE AS SCRIBED TO THE INDIVIDUAL?

IF IT IS RETAINED FOR UNDISTRIBUTED INCOME PURPOSES, IT SHOULD BE AS SCRIBED TO THE INDIVIDUAL .

WHAT CASE LAW SAYS THAT ?

THE ZOLD CASE ANNE PETERSON AND JUDGE PET ERSON SAYS THAT .

I AM STRUGGLING BET WEEN THAT AND THE DEFINITION FOR CHILD SUPPORT WHICH SAYS RETAINED PAYMENT.

I STRUGGLED WITH THAT, AND I STRUGGLED WITH IT IN THE BELIEF. IT IS A COMMONSENSE ANALOGYIN THE SENSE THAT MORE OR LESS YOU CANNOT RUN A BUSINESS WITH OUT WO RKING CAPITAL.IT IS COMMON SINCEZENS THAT YOU HAVE GOT TO RETAIN SOME IT IS M ONDAY KMON SENSE THAT YOU HAVE GOT TO RETAIN SOME I T IS COMMON SENSE THAT YOU HAVE GOT TO RETAIN SOME EARNINGS OR YOU WOULD BE OUT OF BUSINESS .

YOU TALKED ABOUT THE POSSIBILITY THAT SOMEONECOULD HAVE MO NEY COMING FROM THE TRUST AND THEY SIMPLY DON'T HAVE THAT MONEY DISTRIBUTED, EVEN THOUGH THERE IS NO PAYMENT , I DON'T KNOW THAT ANY COURT WOULD SAY THAT THAT WASN'T AVAILABLE. I MEAN, IN T ERMS OF TRY ING TO ANALOGIZE THAT WHAT WE ARE L O OKING AT IS A CORPORATION THAT, INORD O THER TO AV OID , AT LE AST FOR PURPOSES OF THIS ARGUMENT , A MAJORITY SHAREHOLDER DO ESN'T RETAIN IT FOR LEGITIMATE BUSINESS PURPOSES, THAT IS WHAT WE ARE CONCERNED ABOUT.

YES, YOUR HONOR. AND THERE ARE TRUST KISSES WHERE PEO PLE ALLOW THE T RUST CASES I N WHERE PEOPLE ALLOW THE MONEY TO INCREASE AND NOT TO B E HELD AS NEWS TRUSS INCOME AND IT IS HELD FOR SUPPORT AND THAT MONEYWOULD BE AVAILABLE FOR SUPPORT AND I WOULD AGREE WITH THAT, BU T THAT TRU ST IS NOT RUN NI NG THE BUSINESS WITH THE ORDI NARY AND NECESSARY THINGS THAT YOUHAVE TO DO IN A BUSINESS AND I NE ED TO KNOW AND I HAVE BEEN TROUBLED. I READ THIS DECISION 1 00 TIMES AS TO WHETHER THE FIFTH DISTRICT COURT OF APPEALS AC TUALLY SAID MR . ZOLD HAD A 57.WHATEVER PERCENT OWNERSHIP OF THIS CORPORATION OR WHETHER THEY SAID THAT IT WAS RE VERSED AND FOR THE LOWE R COURT TO CONSIDER THAT, AND I SAYTHAT, BECAUSE ON PAGE 5 OF THE OPINION , THEY MAKE AN E QUATION REGARDING SOME MONIES THAT WERE DISTRIBUTED , AND IT IS IMPORTANT TO OUR ARGUMENT REGARDING THAT, WHERE THE WIFE ALLEGED THAT MR. ZOLD SAID THERE WAS $250,000 FOR DISTRIBUTION , AND THE FIFTH DISTRICT COURT OF APPEALS SAID W E SEARCHED THE RECORD VOLUMINOUS LY AND SEARCHED THE VOLUMINOUS RECORD IN G REAT DETAIL AND FIND NOWHERE WHERE THAT STATEMENT IS. THEN THEY GO ON TO SAY, IF HE HAD 40 PERCENT , IT WOULD BE 100,000 AND IF H E HAD 57 PERCENT , IT WOULD BE 1 42,000 AND THEN THEY FOOTNOTE IT AND SAY THE FINDINGS BY THE JUDGE THAT JOHN O WENS 57 PERCENT OF TRITECH DOES NOT A FFECT TRI TECH O R ITS STOCKHOLDERS, WHO ARE NOT PARTIES TO THESEPROCEEDINGS, AND THEN THEY VACATE AND SET AS IDE THE FINDINGS AS TO JOHN'S INCOME , THE PORTION OF THE FINAL JUDGMENT ORDERING SUPPORT AND EQU ITABLE DISTRIBUTION , WHICH GOES

ISN'T THAT SOMETHING THAT , REALLY, YOU ALL ARE GO ING TO HAVE ON SORT OUT DOWN THE ROAD , AS O P POSED TO SORT OF A LIMITED LEGAL ISSUE ABOUTTHE CONF LICT OF THESE DISTRICT COURT OF APPEAL DECISIONS ON THESE EARNED INCOME ISSUES , THAT IS THAT OUR PIECE OF THAT IS M UCH NARROWER, IS I T NOT?

YES, YOUR HONOR , I REALIZE WHY THIS COURT TOOK THIS CASE FOR APPE LLATE PURPOSES. AND IT I S SUBC HAPTER S DISTRIBUTION OF INCOME.

WE ARE GOING TO HAVE E NOUGH DIFFICULTY SOR TING THAT OUT , BUT WITH YOU R HELP WITH REFERENCE T O THIS BURDEN ISSUE, SO I THINK THAT THAT MAY A ID THE RESOLUTION .

I WANT TO JUST ASK YOU SOMETHING ABOUT THE FINAL JUDGMENT. WAS THIS A FINAL JUDGMENT PREPARED BY ONE PARTY OR THE OTHER, OR WAS IT A COURT PREPARED THIS FINAL JUDGMENT?

YOUR HONOR , MR. LEVIN CAN ANSWER. THAT I BELIEVE THIS WAS EXACTLY WHAT HE GAVE THE JUDGE. HE SIGNED IT WITHOUT CHANGING A WORD.

BUT EITHER WAY , YOU DIDN'T CHALLENGE IT ON THAT BASIS , THAT IT WAS NOT AN INDEPENDENT WEIGHING BY THE JUDGE, DID YOU?

NO , YOUR HONOR, MY POS ITION , I G UESS MY EXPERIENCE AS A TRIAL LAWYER IS TO FILE A MOTION FOR A NEW TRIAL , WAS A WAS TE OF TIME.

BUT IN REF ERENCE ON PAGE 7 OF THE FINAL JUDGMENT , IT SAYS THE COURT DID NOT FIND THE HUSBAND'S S WORN FINANCIAL AFFIDAVIT OR TESTIMONY REGARDING HIS INCOME TO BE CREDIBLE , AND THEN GOES ON ABOUT THAT , S O I , I SEE YOU ARE OUT OF TIME. MY CONCER N IS THAT , TO WHAT EXTENT DID THE TRIAL COURT ERR AS A MA TTER OF LAW AND TO WHAT EX TENT REALLY WHAT HAPPENED IS THAT THE FIFTH DISTRICT SUBSTITUTED ITSJUDGMENT ABOUT THE CREDIBILITY OF THE HUSBAND 'S STATEMENT ABOUT HIS INCOME.

YOUR HONOR , IT IS HA RDFOR ME T O SAY EXCEPT THAT I BELIEVE THE TOTALITY OF THE EVIDENCE WAS UNEQUIVOCALTHAT HE WAS A 40 PERCENT OWNER , AND I THIN K THE FIFTH DISTRICT FELT THEY COULD NOTCHANGE, MAYBE , AND I DON'T KNOW WHETHER THEY DID OR NOT , BUT IF THEY FELT THAT SHE COULD NOT CHANGE THE 57 PERCENT , BUT IT WAS INCORRECT .

WE ARE OUT OF TIME. THANK YOU.

THANK YOU VERY MUCH.

CHIEF JUSTICE: MR. LEVIN . 90 SECONDS.

I BETTER TALK QUICKLY ANDI REAL LY WANT TO TALK TO THE JUDGE TO THE JUSTICE ABOUT HIS QUESTIONS. LET ME JUST QUICKLY , QUICKLYHIT ON A COUPLE OF THINGS .

YOU SAID THIS WAS A BURDEN ISSUE , REALLY.

I DID.

AND IN THAT EFFECT YOUR OPPONENT, IT SEEM S TO ME HERE, SAYS HE HAS NO PROBLEM WITH ACCEPTING THAT BURDEN OF THE PER SON INVOLVED WITHTHE CORPORATIO N. WHY SHOULDN'T THAT END IT?

I THINK THAT THAT IS THE STARTING POINT OF THE RESOLUTION OF THE CONF LICT. THEN THE NEXT QUESTION IS HOW DO YOU APPLY THE RESOLUTION TO THIS PARTICULAR CASE , AND