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In Re Marriage of Holder

OPINION FILED OCTOBER 8, 1985.

IN RE MARRIAGE OF RUTH ANN HOLDER, PETITIONER-APPELLANT, AND JOSEPH HOLDER, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Perry County; the Hon. Robert Bastien, Judge, presiding.

JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

The marriage of petitioner, Ruth Holder, and respondent, Joseph Holder, was dissolved in a bifurcated proceeding, the final judgment awarding property and custody of the two minor children being entered on July 18, 1983. On appeal petitioner questions only the distribution of property and the award of custody of the parties' two sons to respondent.

The property involved consists of seven parcels of modular and mobile home rental property (collectively referred to as Holder Rentals), various items of personal property, and Mobile Structures, Inc., an office trailer and room addition manufacturing business owned solely by respondent. The original site of Mobile Structures, Inc.'s, business was leased to Contempri Homes, Inc., a subsidiary of Mark IV Industries. Although Mobile Structures, Inc., did not cease as a corporate entity, all equipment and inventory was sold to Mark IV Industries, which also continued to employ Mobile Structures, Inc., employees. Mobile Structures, Inc., was subsequently rebuilt at another location.

Both parties presented extensive testimony from qualified appraisers as to the value of all property. On the basis of the sale of Mobile Structures, Inc.'s, assets to Mark IV Industries, respondent testified that Mobile Structures, Inc., did not possess an asset of goodwill. Petitioner presented no estimated value of goodwill at trial. While both parties agree that petitioner worked at Holder Rentals and Mobile Structures, Inc., during the course of the marriage, conflict exists as to the number of hours she was employed and the amount of direct compensation she received.

The trial court found all real property to be marital and placed an equity value on each parcel. Petitioner was awarded the marital home with an equity of $133,000 and two parcels of rental property valued together at $52,000. Respondent was awarded Mobile Structures, Inc., valued by the court at $123,700, and five parcels of rental property valued at $109,800. Respondent was ordered to pay petitioner maintenance of $540 per month for two years and to make three mortgage payments on the marital residence on petitioner's behalf. In addition, respondent was awarded custody of the parties' two sons and was ordered to maintain life insurance in the amount of $25,000 per child. Petitioner was granted liberal visitation rights.

On October 11, 1983, a hearing was held wherein petitioner's post-trial motion to reopen the hearings to present evidence of the value of goodwill of Mobile Structures, Inc., was denied. On October 29, 1983, the building leased by Mobile Structures, Inc., to Contempri Homes, Inc., burned to the ground. Petitioner filed notice of appeal on November 4, 1983. At a hearing held on March 15, 1984, pursuant to petitioner's motion to stay the sale of Mobile Structures, Inc.'s, building and land, respondent testified that Mobile Structures, Inc., received $193,700 in insurance proceeds and that a sale of Mobile Structures, Inc.'s, land and building for the amount of $107,000 was pending between that corporation and Contempri Homes, Inc. Petitioner's motion to stay the sale was denied, but respondent was ordered to place $90,000 in escrow upon completion of the sale pending the outcome of this appeal.

Petitioner raises five issues on appeal: first, whether the trial court erred in awarding custody of the parties' two children to respondent; second, whether this court should take judicial notice of the change in value of the building leased to Contempri Homes, Inc., as established by the proceeds of the insurance policy and the value of Mobile Structures, Inc.'s, building and land as fixed by the sales agreement, both of which exceeded the values placed on the property at trial; third, whether the trial court erred in denying petitioner's post-trial motion requesting the opportunity to present evidence of the value of goodwill; fourth, whether the trial court abused its discretion in its division of property; and fifth, whether the court erred in denying petitioner's request for attorney fees.

Initially, petitioner contends that the trial court erred in awarding custody of the parties' two sons, ages 9 and 11 at the time of trial, to respondent.

• 1 The best interest of the child is the primary concern in determining custody of minor children. (In re Marriage of Thompson (1983), 96 Ill.2d 67, 449 N.E.2d 88, cert. denied (1983), 464 U.S. 895, 78 L.Ed.2d 232, 104 S.Ct. 242; In re Marriage of Benevento (1983), 118 Ill. App.3d 16, 454 N.E.2d 766.) The Illinois Marriage and Dissolution of Marriage Act sets forth relevant factors to be considered in determining custody in accordance with the best interest of the child. (Ill. Rev. Stat. 1983, ch. 40, par. 602.) The trial court had ample evidence before it to which these factors could be applied in making its custody determination. Witnesses called on petitioner's behalf stated that respondent had a close relationship with the children and described their relationship as very good, whereas petitioner's relationship was described as fairly good. Respondent was described as an excellent father who spent quality time with his children. While neither parent was deemed unfit, it is not necessary to find one parent unfit in order to justify an award to the other parent. (In re Marriage of Macaluso (1982), 110 Ill. App.3d 838, 843, 443 N.E.2d 1, 4.) The record reveals that petitioner incurred problems dealing with the children when they were younger, and babysitters were frequently employed to help care for the children. Petitioner consulted a psychiatrist for what she described as marital problems and was prescribed tranquilizers and antidepressants.

Testimony was given concerning the availability of each parent to the children should he or she be awarded custody. Petitioner stated that she intended to continue her education on a part-time basis. Respondent stated that he intended to continue working full-time but that he would make time to spend with the boys as he had in the past. Friends and neighbors of respondent, who had known the children for years, testified that they would be available to assist the respondent. When the children were interviewed in chambers, neither expressed a preference as to which parent they chose to live with.

• 2 Because the trial court is in a unique position to observe the demeanor and assess the credibility of witnesses, that court's decision will be reversed only if it is contrary to the manifest weight of the evidence or constitutes an abuse of discretion. (In re Marriage of Milovich (1982), 105 Ill. App.3d 596, 434 N.E.2d 811; In re Marriage of Ramer (1980), 84 Ill. App.3d 213, 405 N.E.2d 401.) The record indicates that the trial court took into consideration all relevant factors in determining that the best interests of the children would be served by awarding custody to respondent.

The second issue raised by petitioner is whether this court should take judicial notice of the change in the value of Mobile Structures, Inc.'s, assets, as established by the insurance proceeds and sales agreement, as a basis for modifying the distribution of property.

On March 15, 1984, at a hearing held pursuant to petitioner's motion to stay, respondent disclosed that Mobile Structures, Inc., had received $193,700 in insurance proceeds as a result of a fire on October 29, 1983, which destroyed the building leased to Contempri Homes, Inc. Contempri Homes, Inc., and Mobile Structures, Inc., reached an agreement whereby Contempri agreed to purchase Mobile's building and land for $107,000 ($17,000 down and the balance of $90,000 due one year from the date of sale). Petitioner's motion to stay was denied, but respondent was ordered to place $90,000 in escrow pending the outcome of this appeal.

Petitioner contends that the discrepancy between the values assigned by the trial court to the Mobile Structures, Inc.'s, and Contempri Homes, Inc.'s, buildings and land, $75,000 and $87,000, respectively, and the amounts realized from the insurance proceeds and sales agreement, is evidence that the property was grossly undervalued. Petitioner argues that this court should take judicial notice of the amounts received from the insurance proceeds and ...


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