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In Re Marriage of Los

OPINION FILED AUGUST 2, 1985.

IN RE MARRIAGE OF CZESLAW P. LOS, PETITIONER-APPELLANT, AND KATARZYNA LOS, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Du Page County; the Hon. Edmund Bart, Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 27, 1985.

The petitioner, Czeslaw P. Los, and the respondent, Katarzyna Los, were married in Poland on July 17, 1977. On September 17, 1982, petitioner filed this action for dissolution of marriage in the circuit court of Du Page County. After a contested trial on the issue of property division and maintenance, the trial court entered a judgment of dissolution of marriage on May 4, 1984. On appeal, petitioner argues that the trial court's division of marital property, award of maintenance and award of attorney fees to respondent were an abuse of discretion.

The marital assets and debts of the parties consist primarily of the marital residence, its furnishings and fixtures, a 1982 Chrysler New Yorker automobile, a $12,736.84 debt from a second piece of real estate, and a $20,000 judgment taken against the parties by the petitioner's parents.

The marital residence, located at 1038 Kenilworth in Lombard, was purchased by the parties in March of 1978 for approximately $60,000. Prior to trial the house had been appraised by three separate realtors at $68,000, $74,000 and $82,000 and had been listed for sale unsuccessfully for four months at $81,500. The home had an outstanding mortgage balance of $43,823. The trial court ordered the house sold and awarded respondent 60% of the net proceeds and petitioner 40% of the net proceeds. The court did not make a specific finding as to the fair market value of the home. As to the furnishings and fixtures in the home, the court ordered that they be divided equally by the parties or sold at public auction and the proceeds divided equally if the parties could not agree on how to divide them.

The marital home was also encumbered by a judgment lien in the amount of $20,000 placed upon the property by petitioner's parents after this action was filed. Petitioner's parents had allegedly loaned the parties $20,000 when they were first married, $14,800 being used as a down payment for the marital home, $1,700-1,800 being used for closing costs on the home, and the remaining $3,400-3,500 being used to purchase an automobile and household furnishings. The court ordered that the judgment lien be paid solely out of petitioner's proceeds from the sale of the property.

The parties' second piece of real estate was a residential unit located at 7 East Goebel in Lombard. The parties rented out this property for $535 per month. Apparently neither party paid the mortgage payments on the property after this action was filed and the mortgage was foreclosed and sold, leaving a deficit of $11,336.85 plus charges of $1,400 in attorney fees. The court ordered both parties to pay one-half ($6,368.42) of this debt.

The parties also owned a 1982 Chrysler New Yorker automobile, which both parties agreed had a fair market value of $7,500. The court awarded the car to petitioner.

Further, the evidence showed that in 1983 petitioner earned $26,672.71 as a tool and die maker, while respondent earned an average of $11,000 for the years 1980-83. The court ordered petitioner to pay the respondent $300 per month in maintenance for a period of 24 months and $3,500 in attorney fees.

• 1 Petitioner's first argument on appeal is that the trial court erred in failing to make specific findings or to otherwise make clear from the record the relevant factors it considered in dividing the marital property. Petitioner is correct that a trial court should make specific findings or otherwise make clear from the record the relevant factors it considered in rendering a decision under sections 501 through 515 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, pars. 501 through 515). (Sostak v. Sostak (1983), 113 Ill. App.3d 954; In re Marriage of Amato (1980), 80 Ill. App.3d 395.) However, reviewing courts have uniformly held that where the record is adequate to provide a basis upon which to review the propriety of the decision, and the decision is supported by the evidence, the reviewing court will not reverse solely because specific findings are lacking. (Sostak v. Sostak (1983), 113 Ill. App.3d 954; In re Marriage of Reyna (1979), 78 Ill. App.3d 1010; In re Marriage of Stallings (1979), 75 Ill. App.3d 96.) Here, the record is adequate to provide a basis upon which to review the decision and the decision is supported by the evidence.

• 2 Petitioner's second argument on appeal is that the trial court's division of marital property was an abuse of discretion. A trial court's distribution of marital property rests within its sound discretion and will not be disturbed absent an abuse of discretion. (In re Marriage of Hellwig (1981), 100 Ill. App.3d 452.) Such an abuse of discretion occurs only where no reasonable person would take the view adopted by the trial court. In re Marriage of Miller (1983), 112 Ill. App.3d 203.

• 3 The court ordered the marital residence sold and the net proceeds distributed 60% to respondent and 40% to petitioner. Using an average of the three appraisals introduced into evidence ($75,000) as the property's fair market value, respondent would receive $18,700 and petitioner would receive $12,500 after the property is sold and the outstanding mortgage paid off. Further, taking into account each party's $6,368.42 debt from the property located at 7 East Goebel, the award of the parties' $7,500 automobile to petitioner, and the award of $3,500 in attorney fees to respondent, we find that the court awarded respondent approximately $12,338 and petitioner approximately $10,102 in marital assets. (In addition, each received one-half of the furnishings and fixtures in the marital residence.) We cannot say that this division of marital property was an abuse of discretion.

• 4 Petitioner argues, however, that the court's division of marital property was an abuse of discretion because he was ordered to pay off the entire $20,000 judgment lien held by his parents on the marital residence. Respondent argues, on the other hand, that the evidence showed that the loan was not a loan at all, but was a gift and the $20,000 judgment lien was a fraud against her.

In a non-jury trial where there is conflicting testimony, the determination of the witnesses' credibility is for the trier of fact. His findings will not be disturbed unless manifestly against the weight of the evidence. (In re Marriage of Stallings (1979), 75 Ill. App.3d 96.) Here, there is clear evidence in the record to support respondent's argument that the judgment lien was fraudulent. The evidence showed that petitioner had never made a payment on the alleged loan, that his parents had never requested payment on the alleged loan, that the judgment was obtained after this action was filed, and that petitioner never told the respondent that they had to repay the alleged loan or that his parents were suing on the alleged loan. In ...


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