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In Re Marriage of Ayers

OPINION FILED MARCH 19, 1980.

IN RE MARRIAGE OF EVELYN M. AYERS, PETITIONER-APPELLEE, AND RONALD EUGENE AYERS, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Henry County; the Hon. DAN H. McNEAL, Judge, presiding.

MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

The appellant, Ronald Ayers, was the respondent in a petition for the dissolution of marriage. He appeals the dissolution of his marriage, the division of the couple's marital property, and the custody award of the couple's minor daughter to his wife, Evelyn.

On September 20, 1978, Evelyn May Ayers filed a petition for dissolution of marriage with the Circuit Court of Henry County. On October 26, 1978, her husband, Ronald E. Ayers, filed a response and counterclaim. A hearing was held the same day, at which Mrs. Ayers was the sole witness. After this hearing, the judge found that grounds existed for dissolution. No order of dissolution was entered.

On January 9, 1979, a hearing was begun to determine the matters of child custody and the distribution of property. The second portion of the bifurcated proceedings was heard by a different judge than the one who had heard the evidence on the issue of, and grounds for dissolution. On April 18, 1979, the second judge entered an order relating to: (1) Custody and visitation; (2) Medical insurance; (3) Real estate interest; (4) Child support; and (5) Maintenance. This order indicated that a decree of dissolution had previously been entered, although such was not, in fact, the case. Subsequently, the successor judge discovered that his predecessor had not actually entered an order dissolving the marriage, but had merely made findings that grounds for dissolution existed. On May 16, 1979, the petitioner was granted leave to submit an amended judgment order, and on the same day, such amended judgment order was entered. It recited that the court had, through the first judge, found that grounds for dissolution existed. The court was, therefore, entering an order for the dissolution of the marriage, to be effective as of the date of entry. The respondent, Ronald Ayers, appeals from this amended judgment. Two of his contentions on appeal are procedural, and shall be dealt with before further examination of the facts.

• 1 The appellant's first contention is that a successor judge may not enter an order for the dissolution of a marriage based upon the findings of a different judge. The statutory and case law to which he cites the court are inapposite. The jurisdictions are divided on the question of whether a successor judge may issue an order based upon the factual findings of his predecessor. In those jurisdictions which deny the successor judge this power, or more commonly, which refuse to issue a writ of mandamus compelling the successor judge to issue such an order, the question is not one of jurisdiction. It is clear that a court, and not an individual judge, has jurisdiction over a case. (Department of Public Works & Buildings v. Legg (1940), 374 Ill. 306, 309, 29 N.E.2d 515; People ex rel. Hambel v. McConnell (1895), 155 Ill. 192, 201, 40 N.E. 608; Glasser v. Essaness Theatres Corp. (1952), 346 Ill. App. 72, 89, 104 N.E.2d 510, aff'd (1953), 414 Ill. 180, 111 N.E.2d 124; In re Life and Fire Insurance Co. v. Heirs of Wilson (1834), 33 U.S. (8 Pet.) 291, 8 L.Ed. 949.) Rather, the question is one of due process.

Because an order is not final until actually entered, a judge is free to change his mind as to his intended disposition. Therefore, in some jurisdictions, it is considered inappropriate for a successor judge to assume that the factual findings of his predecessor were final and binding. Because the successor judge did not hear the evidence, he might be reluctant to reconsider the findings, whereas the first judge, it is assumed, might yet have reconsidered. (Wainwright v. P.H. & F.M. Roots Co. (1912), 176 Ind. 682, 97 N.E. 8; State ex rel. Ruth v. Hoffman (1947), 82 Ohio App. 266, 80 N.E.2d 235 (mandamus denied, disposition left to discretion of successor judge).) It is to be noted, however, that many jurisdictions, as well as the Federal Rules, find the argument advanced by the respondent unpersuasive. State ex rel. Bloom v. Superior Court (1933), 171 Wn. 536, 18 P.2d 510; United States v. Sundstrom (2d Cir. 1973), 489 F.2d 859, cert. denied (1974), 419 U.S. 934, 42 L.Ed.2d 163, 95 S.Ct. 205; Fed. R. Crim. P. 25(b); Fed. R. Civ. P. 63.

• 2 Although Illinois courts> have not ruled directly on this point, such precedents as exist seem to indicate that it is proper in this State for a successor judge to issue an order based upon his predecessor's findings of fact. (Cf. People ex rel. Hambel v. McConnell (1895), 155 Ill. 192, 201, 40 N.E. 608; Western Land Corp. v. Lichtenstein (1977), 47 Ill. App.3d 233, 238, 361 N.E.2d 730; Mills v. Ehler (1950), 407 Ill. 602, 95 N.E.2d 848.) Even if this court were to concede the merits of the due process argument, an issue we do not reach, we do not think that this case raises any question of a due process violation. At no time, during or after trial, was the petitioner's evidence on the grounds for dissolution ever questioned by the respondent. Even the respondent's motion for post-trial relief, filed April 6, 1979, is completely devoid of challenge to the finding of grounds for dissolution. Therefore, it is clear that neither evidence nor argument was presented which might motivate the original judge to change his findings of fact. For this reason, we see nothing improper in the entry of an order dissolving the marriage, by the successor judge, based upon the factual findings of his predecessor.

• 3 The appellant next contends that it was error for the judge to enter judgment on the issues of custody and visitation, child support, maintenance, and property distribution on the same day that he entered an order dissolving the marriage. The Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 403(e)) provides:

"Contested trials shall be on a bifurcated basis with the grounds being tried first. Upon the court determining that the grounds exist, the court shall allow not less than 48 hours for the parties to settle amicably the remaining issues before resuming the trial."

In this case, the court determined on October 26, 1978, that grounds for dissolution existed. The trial was not resumed until January 9, 1979. Therefore, the statute was complied with. A finding that grounds exist for dissolution is not the same as an order of dissolution. Only the finding need be made not less than 48 hours before the proceedings may continue.

The appellant's third contention is that the court erred in its division of the parties' property. The parties had an interest in three pieces of real property. The marital residence was owned jointly by husband and wife, subject to a $1,429.75 mortgage. In addition, the parties each owned a one-quarter interest in two pieces of income-producing property, the Sherrard and Swedona properties. It was agreed by the parties that the real property should go to the husband. Ronald wanted the residence because it is located near a farm owned by Evelyn's parents, and he and his son wanted to work on the farm. In addition, the residential property included a garage, the use of which provided Ronald with an income of some $700 per year for mechanical work he performed in the garage.

• 4, 5 In exchange for her interest in the real property, Evelyn was awarded $31,250, to be paid by Ronald, secured by a lien upon the real estate. She is to be paid the legal rate of interest, and upon full payment, is to quit-claim her property interest to Ronald. Ronald disputes the propriety of this award. The judge accepted an appraisal by a Mr. Schroeder, which valued the residence at $46,000. Ronald's appraiser valued it at only $40,000. The judge's memorandum of findings indicates that Ronald and Evelyn had agreed that Mr. Schroeder was to appraise the property. Furthermore, valuation of assets in a divorce matter is a question of fact for the trial court to determine. (Riordan v. Riordan (1977), 47 Ill. App.3d 1019, 1024, 365 N.E.2d 492.) The judge arrived at the monetary award as follows: Under the Schroeder appraisal, the value of the house was $46,000. Deducting the $1,429.75 mortgage, there existed an equity of $44,570.25. Half of that figure is $22,285.12. A one-quarter interest in the Sherrard property was valued by stipulation at $3,800, and a one-quarter interest in the Swedona property was likewise valued at $5,250. Adding the three latter figures together, we arrive at $31,335.12. The amount of Evelyn's award was somewhat less, $31,250.

Ronald objects to the fact that he must pay the property taxes on the Swedona and Sherrard property. Given the income producing nature of these properties, we do not think the court abused its discretion in directing him to pay these taxes. Ronald further objects to the court's order requiring him to pay the debts accumulated by the couple. He wants Evelyn to pay half of these, or $2,680.60. Because the legitimacy of certain debts owed to Ronald's brother is in doubt, and because many of these debts were acquired in the maintenance of the residence, the benefits of which will not accrue to Ronald, we do not conclude that the court abused its discretion in ordering him to discharge these obligations. In addition, Evelyn was awarded a Monte Carlo automobile, with Ronald to pay the $3,900 balance due on the car. Ronald was awarded a 1973 truck. The truck is currently inoperable, but Ronald is known to possess considerable mechanical skills. The automobile was purchased by the couple to provide transportation for Mrs. Ayers when she recently resumed employment as a nurse in Moline. She needs a car for commuting to work. She will be providing most of the support for her daughter. Ronald is required to pay only $15 per week child support. We, therefore, do not find the trial court to have abused its discretion in awarding the car to Mrs. Ayers, while requiring Mr. Ayers to pay the balance due on it. Ronald was, also, ordered to pay $865.80 for his wife's attorney's fees.

At the time of the divorce, Ronald was 31 years old, Evelyn was 29. They were married when she was 17 and the marriage had endured over 13 years. They had a 12-year-old son, who, by agreement of the parties, was to be in the custody of Ronald. They also had a 9-year-old daughter, whose custody was to vest in Evelyn. Most of their married life, Evelyn did not work. She recently completed nurse's training and had, prior to the divorce, worked a short time in a hospital in Moline. She earned about $10,000 per year. Ronald worked for John Deere and Co., and in addition did mechanical work in his garage. His annual income was about $15,000. Ronald was ...


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