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05/20/94 MARRIAGE KATHERINE E. HERRIN

May 20, 1994

IN RE: THE MARRIAGE OF KATHERINE E. HERRIN, PETITIONER-APPELLANT, AND JOHN E. HERRIN, RESPONDENT-APPELLEE.


Appeal from Circuit Court of Sangamon County. No. 90D458. Honorable Stuart H. Shiffman, Judge Presiding.

As Corrected June 6, 1994. As Corrected June 27, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, J., Honorable Robert W. Cook, J.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In May 1990, petitioner, Katherine E. Herrin, and respondent, John E. Herrin, were granted a dissolution of marriage, and a settlement agreement was incorporated into the judgment of dissolution. Under this agreement, petitioner was to receive $2,000 per month in maintenance payments, which would terminate if a court found that petitioner was cohabitating with another on a resident, continuing, conjugal basis. This portion of the agreement corresponds with section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 510(c)).

In June 1992, respondent filed a petition to terminate maintenance based on allegations that petitioner was cohabitating with Michael Badger on a resident, continuing, conjugal basis. After a hearing, the trial court granted the petition. Petitioner appeals the court's termination of maintenance and denial of her motion to reconsider and reopen the evidence. We affirm.

I. BACKGROUND

Petitioner, respondent, and Badger testified at the October 1992 hearing concerning the alleged cohabitation of petitioner and Badger as follows. Badger and petitioner have been romantically involved for approximately 2 1/2 years and were engaged in a monogamous sexual relationship. Badger testified that he did not have any intention of seeing other women, while petitioner was unsure whether she intended to see any other men romantically.

Badger and petitioner testified that they love each other and have discussed marriage. One of the reasons they have not married is that Badger would not be able to support petitioner at the standard of living to which she has become accustomed. Badger was aware that if they married, petitioner would no longer receive $24,000 a year in maintenance. Badger also knew that if he slept at petitioner's residence, her maintenance would end.

Badger has owned a residence for approximately four years, but it does not have gas service, heat, or hot water. Badger testified that he sleeps at this residence seven nights a week except on weekends when petitioner's children stay with respondent and he stays overnight with petitioner.

Badger eats most of his meals at petitioner's residence with petitioner and her children. Badger generally does not buy any groceries for these meals. Occasionally, he eats at his residence. After dinner at petitioner's residence, Badger makes phone calls for his real estate business, watches television, or plays with petitioner's children. Occasionally, Badger gives petitioner's phone number to his clients so they can reach him at her home.

Badger and petitioner spend most holidays and vacations together with their respective children, making these trips several times a year. In the 18 months before the October 1992 hearing, petitioner and Badger, accompanied by the children, traveled outside Springfield six times. These trips included vacations to Wisconsin and Missouri, visits to Badger's parents in Michigan, and visits to petitioner's father in Arkansas. Although petitioner and Badger usually shared the expenses for these trips, petitioner primarily paid for one week-long vacation.

Badger typically stays at petitioner's residence until around 10:30 p.m. each evening and then returns to his home, taking petitioner's car because he does not have a vehicle. He had made payments on a van, but under the terms of his divorce, he was forced to turn it over to his ex-wife. At one time, the loan payments had been made by Badger's employer. However, his employer determined that this was too expensive and stopped making the payments. At this point, petitioner took out a loan, paid for the van, and became a lien holder on the van. Since that time, Badger has occasionally not made the van payments to petitioner on time.

In October 1992, Badger kept a computer at petitioner's residence. Badger had tried to purchase this computer on credit, but his request was denied. Before the computer was repossessed, petitioner signed a loan in her own name, incurring a debt of approximately $2,000 in order to keep the computer. The monthly payments on the computer are about $102. Although Badger usually made these ...


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