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04/06/87 In Re Marriage of Lynne Ohrt

April 6, 1987

IN RE MARRIAGE OF LYNNE OHRT, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

DANIEL OHRT, Respondent-Appellant

507 N.E.2d 160, 154 Ill. App. 3d 738, 107 Ill. Dec. 496 1987.IL.441

Appeal from the Circuit Court of Kankakee County; the Hon. John F. Michela, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. BARRY, P.J., and HEIPLE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

The issue in this appeal is whether the trial court abused its discretion when classifying and dividing the property of the parties upon a dissolution of marriage. The parties were married on August 30, 1975, and a judgment for dissolution was entered on April 16, 1985. The property divided by the trial court consisted of defendant's interest in a farming partnership with his two brothers, farmland, a residence, a doll collection, two vehicles, household goods and furnishings, a savings bond and the cash proceeds of a personal injury suit.

The trial court found that the farmland was an asset of the partnership and consisted of inherited land, clearly nonmarital, and 54 acres that plaintiff and defendant owned as tenants in common with the defendant's brother and sister-in-law. Further, that the 54 acres were transferred by deed by the plaintiff and the sister-in-law to a third brother for no consideration and, therefore, were marital property. The court also found that although the home was purchased by defendant prior to the marriage, it was purchased with the intent and understanding that it was to be the marital home and that it was cared for by the plaintiff, which made it marital property. All other property divided by the trial court was also determined to be marital property except for some cash that each party obtained via settlement of a personal injury action.

The court ordered the property to be divided as follows. The plaintiff was to receive one-fourth of the value of the 54-acre tract, equalling $29,700. The defendant was awarded the marital residence and ordered to pay plaintiff $8,500 for her interest in said residence and defendant also to pay the remainder of the existing mortgage. The defendant was awarded the partnership interest in Ohrt Brothers, with the exception of one-half of defendant's one-third interest of the crops on hand as of June 19, 1985, equaling $10,440, which was awarded to the plaintiff. The plaintiff was awarded the Barbie Doll collection, with defendant being entitled to a $7,500 setoff against monies payable to plaintiff. The plaintiff was awarded all household items listed on plaintiff's exhibit No. 5 and all household items presently in her possession; defendant was awarded all remaining household items. Plaintiff was awarded a 1978 Camaro with defendant obligated to pay any remaining indebtedness encumbering said vehicle, and defendant to retain a 1982 Chevy pickup truck and pay all outstanding indebtedness encumbering the pickup. All cash deposits in plaintiff's name were awarded to plaintiff and all cash deposits in defendant's name were awarded to defendant. The savings bond of the parties was divided equally, and, lastly, all debts incurred by the parties during the marriage shall be paid by the defendant except those debts incurred by the plaintiff after her departure from the marital residence.

Initially, we note that the distribution of marital property is a decision within the sound discretion of the trial court, and a reviewing court should not reverse unless it reflects an abuse of discretion. (In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 425 N.E.2d 1146.) Moreover, if reasonable persons could differ as to the propriety of the result handed down by the trial court, then the decision of the trial court is not an abuse of discretion. In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.

Defendant maintains that the trial court abused its discretion, however, by awarding the plaintiff $29,700 as her one-fourth interest in the 54-acre tract of land owned by the Ohrt brothers. The undisputed evidence shows that when the property was originally purchased, the titleholders were Daniel Ohrt (defendant), Lynne Ohrt (plaintiff), one other Ohrt brother and his wife. However, in the spring of 1984 the property was transferred from the two wives to a third Ohrt brother, who, for no consideration, became an undivided one-third owner of the property.

Defendant first argues that the trial Judge should have considered the encumbrances on the property before awarding the plaintiff an award based on the fair market value of the property. Second, that the trial court should have considered plaintiff's share in the property solely as a partnership asset. In particular, defendant claims that since the partnership provided the funds to purchase the property and has since provided all of the payments on the mortgage, the property should be considered a partnership asset when awarding plaintiff's share of the marital estate.

We are of the opinion that the trial court did not abuse its discretion in awarding plaintiff a one-fourth share of the fair market value of the 54 acres. The evidence shows that the property was purchased by the two brothers and their wives as tenants in common. The two wives, one being Lynne Ohrt, later signed off their interests in the property, for no consideration, and another Ohrt brother was given an undivided one-third interest in the property. Had there been consideration given for the transfer of title, the result here may have differed. Defendant testified that all of the funds to purchase the property were furnished by the partnership. Nevertheless, the plaintiff still had some interest in the property at the time of transfer to the third brother and, therefore, the trial court's ruling that one-half of the value of the 54-acre tract was marital property is supported by the evidence and will not be overturned on review. "Even if the reviewing court disagreed with a trial court factual determination, or may have come to a different Conclusion, the decision of the trial court will not be overturned if evidence supports the decision." Dempsey v. Sternik (1986), 147 Ill. App. 3d 571, 578, 498 N.E.2d 310, 314-15, citing La Grange Metal Products v. Pettibone Mulliken Corp. (1982), 106 Ill. App. 3d 1046, 436 N.E.2d 645.

Defendant also disputed the trial court's determination that the family residence is marital property. The record reveals that defendant purchased the house approximately two months before the parties were married by borrowing $3,000 for the down payment and mortgaging the remaining purchase price. Only the defendant's name appeared on the title to the property, the note and the mortgage. Therefore, defendant asserts, under section 503 of the Illinois Marriage and Dissolution of ...


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