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February 14, 1994


Appeal from Circuit Court of Sangamon County. No. 87D37. Honorable George H. Ray, Judge Presiding.

As Corrected March 7, 1994. Petition for Rehearing Denied August 29, 1994, Reported at 638 N.E.2d 655 at 622, 265 Ill. App. 3d 171, 202 Ill. Dec. 787 at 794.

Honorable Robert W. Cook, J., Honorable James A. Knecht, J., Honorable Frederick S. Green, J.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Respondent R. Robert Frasco appeals the denial of his petition for termination of maintenance in which he alleged that his former wife, Norma Scott, was cohabiting with a man on a resident, continuing conjugal basis. He also appeals the court's award of attorney fees to petitioner.

In January 1987 petitioner filed a petition for dissolution of marriage. At the same time, she left the marital home and moved into the home of her sister and brother-in-law (the Averse residence), where she was to help care for her sister's elderly mother-in-law. She was then receiving temporary maintenance of $600 per month from respondent and was working part-time at Sears. In February 1990, shortly after the death of her sister's mother-in-law, petitioner's adult daughter, who had become permanently disabled as the result of a car accident, came to live with petitioner at the Averse residence.

A judgment of dissolution of marriage was entered in August 1990 in which petitioner was awarded $49,000 in marital property; maintenance of $2,000 per month until May 1991, and $1,500 per month thereafter; and her attorney fees of $5,695.40. Respondent filed an appeal with this court which affirmed the judgment. In re Marriage of Frasco (1991), 211 Ill. App. 3d 1113, 613 N.E.2d 13 (unpublished order under Supreme Court Rule 23), appeal denied (1991), 141 Ill. 2d 539.

On November 26, 1991, respondent filed a petition for modification of maintenance alleging a substantial change in circumstances since entry of the judgment of dissolution. At approximately the same time, petitioner filed a petition for judgment on the property and attorney fees awarded her, as well as a petition for rule to show cause for failure to comply with the judgment of dissolution. A judgment and order for rule to show cause were entered on or about December 27, 1991.

On February 13, 1992, respondent filed a motion to stay payment of maintenance alleging petitioner was cohabiting with a man on a resident, continuing conjugal basis. The court denied the motion but respondent nevertheless ceased maintenance payments to petitioner after April 1992. Through the time of the court's ruling on respondent's post-trial motions on March 8, 1993, respondent had still not satisfied the property award judgment.

At the hearing on the petition to terminate maintenance, petitioner testified that until June 1991, she and her disabled daughter Jamie had lived with her sister and brother-in-law in the Averse residence. In May 1991, Roy (Bud) Longanecker, whom petitioner had met at her niece's wedding the year before, invited her and her daughter to move into his home at 25 Drawbridge. Petitioner knew the Averses planned to sell their home and move to a condominium, which they purchased on June 5, 1991, so she accepted Longanecker's offer. Petitioner and Longanecker opened a joint checking account called "25 Drawbridge Associates" in which each was to deposit an equal share of the household expenses. Longanecker initially contributed more money than did petitioner as he made improvements to the house to accommodate petitioner's daughter. From June until November 1991, petitioner deposited $6,000 in the Drawbridge account while Longanecker deposited $14,000, $11,000 of which was used for remodeling costs. Petitioner and Longanecker each maintained individual checking accounts to pay for personal expenses. Petitioner paid the personal expenses for herself and her daughter, who had no assets and no income. Petitioner temporarily added Longanecker's name to a $17,000 certificate of deposit (CD), which she had received as a settlement from the dissolution of her first marriage, in order to enable Longanecker to care for Jamie in the event something happened to petitioner.

While the parties resided together, Longanecker and petitioner had separate bedrooms and they had no sexual relations. Both petitioner and Longanecker shared the household responsibilities; she took care of the house and did the laundry, and he cooked meals because he liked to do so. They took turns grocery shopping and shared the yard work. Petitioner testified that after respondent ceased making maintenance payments in May 1992, her only source of income was $288 in monthly social security benefits, which was increased to $643 in August 1992. Her part-time position with Sears had been terminated in February 1991. By the time of the hearing in November 1992, petitioner stated that she had only $5,000 remaining in her CD as she was required to expend the remaining funds to support herself and her daughter. She testified that her monthly expenses at the Drawbridge residence with Longanecker were $1,695 a month, which was more than what they had been at the Averse residence, but that some of those expenses doubled when Longanecker moved out because she then had to pay the entire mortgage and utility bills. At the time of the hearing, Longanecker was 63 years old and petitioner 64 years old.

Longanecker testified that he was the vice-president and general manager of RC Cola and had purchased the Drawbridge residence in October 1990. The mortgage and utilities are solely in his name. He stated that he was married but his wife had been in a nursing home for 2 1/2 years as the result of schizophrenia, emphysema, liver problems and Alzheimer's. After meeting petitioner at her niece's wedding in June 1990, he and petitioner became relatively constant companions. They went out to dinner and movies and he held her hand in public, kissed her, and bought her flowers and perfume. Longanecker testified that petitioner had been very insecure about her financial condition because her sister and brother-in-law were selling their home and she needed to find a residence for herself and her daughter. Longanecker invited petitioner to move into the Drawbridge residence in May 1991 and they each agreed to deposit funds in the Drawbridge account to share the household expenses evenly. He asked petitioner to come and live with him because he "wanted a home where he could come home to dinner and a clean house." They shared dinners at home on a regular basis, with Longanecker often preparing the meals because he enjoyed cooking. Petitioner kept the house neat and clean, paid the household bills from the joint account, did the laundry, and took care of the garden. Longanecker mowed the lawn and took care of maintenance around the house.

In March 1992 Longanecker left the Drawbridge residence due to the "legal harassment and constant surveillance of the house." At the time of hearing, petitioner and her daughter remained in the residence and paid Longanecker $725 a month rent and also paid all the utilities. Longanecker continued to do physical work that needed to be done around the residence such as mowing the lawn. He came to the house an average of five days a week, although he had not spent another night there. He characterized his relationship with the petitioner as "close friends" and he spent the holidays with petitioner and her sister and brother-in-law and their children. Longanecker also testified that he and petitioner took trips to Rockford, to his sister's house in Wisconsin, and a cruise to Alaska sponsored by his employer.

On January 19, 1993, the court issued a letter opinion denying respondent's petition to terminate maintenance, finding petitioner and Longanecker "were not involved in a de facto husband/wife relationship." The court found that the relationship between petitioner and Longanecker, while warm and friendly, was "more of an economic relationship commonly entered into by roommates to share living expenses." The court further found that when petitioner moved into the Drawbridge residence she was financially insecure and the cohabitation had not "materially affected the Petitioner's need for support because she has not received support from Mr. Longanecker or used maintenance monies to support [him]." It was the court's opinion that the petitioner's financial hardships "are a direct result of the Respondent's failure to pay monies ordered by the Court for property awards, considerable legal fees incurred because of Respondent's continuous pursuit of litigation of these matters and his termination of maintenance payments without authority of the Court." The court found the current ...

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