Marriage of Ramsey v. Ramsey , 1989 Ind. App. LEXIS 1231 ( 1989 )

GARRARD, Presiding Judge.

In October 1987 the court dissolved the marriage of Irvin Ramsey and Peggy Ramsey. Their marriage of 20 years had produced five children: Eric, age 19 (still living at home while attending Ball State University), Dawn, age 16, Leif, age 14, Ian, age 11 and Brandie, age 9. The wife was awarded custody of the minor children and the husband was ordered to pay $170 per week in child support and an additional $200 per year per child clothing allowance payable on or before August 1 each year. In addition, he was ordered to provide health insurance for the children and to pay 100% of all uninsured expenses. He was also ordered to continue to pay the college expenses of Erie and to provide college expenses in the future for any of the other children as might become necessary.

The husband worked for Deleo-Remy Division of General Motors and in 1986 earned approximately $37,000. At the time of trial the husband’s gross earnings were about $500 per week and his net earnings were approximately $350 per week.

The wife worked intermittently during the marriage. At the time of trial she worked in the cafeteria at the local high school and earned an average net income of $60 per week.

The marital residence is the most valuable asset of the parties. It is worth approximately $37,900 subject to a mortgage with an unpaid balance of approximately $14,000. Mortgage payments are approximately $265 per month. Insurance amounts to $20 per month and property taxes $30 per month. Utilities at the time of trial were $65 for electricity, $25 for telephone, $36 for gas and $11 for cable television.

The trial court divided the property evenly between the parties. The marital residence was ordered to be sold and the net proceeds divided evenly. The wife was awarded one half of the husband’s pension valued as of September 1, 1986 but not payable until the husband becomes eligible to receive his benefits.

The wife appeals asserting that the trial judge abused his discretion in not awarding her the use of the marital residence during the minority of the children and in determining the amount of child support.

I.

Wife asserts the division of property was an abuse of discretion because the court ordered the marital residence sold rather than awarding her its use during the minority of the children. She presents persuasive argument why it would have been a proper exercise of the court’s discretion to permit her to continue using the home. We do not disagree, but neither are we persuaded that the court abused its discretion acting as it did.

While the statute permits consideration of the use she contends, IC 31-1-11.5-11 expressly authorizes the court to take the precise action it took.

Nor are the circumstances such to drive us to the conclusion that ordering sale was clearly against the logic and effect of the circumstances before the court. For one thing it was the court’s province to make any credibility determinations and to determine the weight of the evidence. Having viewed the witnesses first hand, the court might have concluded that such an arrangement would not, in fact, have worked as well as she portrays it to us.

That we might have made a different choice is not the question. The court did not abuse its discretion in acting as it did.

II.

Wife also contends the court failed to order enough support. Again we can find no abuse of discretion. Her argument essentially asks us to reweigh the evidence and choose inferences other than those chosen by the court. That is not our appellate function.

The appellant has failed to demonstrate error.

Affirmed.

CHEZEM, P.J., concurs. MILLER, J., dissents and files separate opinion.