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07/27/95 MARRIAGE PATRICIA TOOLE v. MICHAEL TOOLE

July 27, 1995

IN RE THE MARRIAGE OF PATRICIA TOOLE, PETITIONER-APPELLEE AND CROSS-APPELLANT,
v.
MICHAEL TOOLE, RESPONDENT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 98-D-1255. Honorable C. Stanley Austin, Judge, Presiding.

Rehearing Denied August 24, 1995. Petition for Leave to Appeal Denied December 6, 1995.

Presiding Justice McLAREN delivered the opinion of the court: Inglis, J., concurs. Justice Rathje dissenting

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

Petitioner, Patricia Toole, and respondent, Michael Toole, ended their marriage of 22 years with a judgment of dissolution entered on June 29, 1994. Michael filed a timely notice of appeal, and Patricia filed a cross-appeal. We affirm in part, reverse in part, and remand.

The record reveals that Patricia and Michael married on December 11, 1971. The parties have two children. At the time of the dissolution, Kristie had attained the age of majority and Jodie was 17 years and 11 months old.

When Michael and Patricia first married, Michael worked at a family-owned construction company, Potteiger Corporation. Michael was promoted to superintendent at Potteiger in 1973 or 1974. In 1986, the Tooles moved to Illinois, where Michael was employed as a construction superintendent for Morris Diesel until 1992. At the time of trial, Michael was employed by CCI Construction Company, Inc. (CCI), as a construction superintendent, receiving a salary of $62,000 per year. Michael had also received a $1,000 bonus in 1993 and a $8,500 bonus in March 1994. His position with CCI requires him to travel to various locations. At the time of trial, Michael was working at a construction site in Louisiana. CCI provided Michael with a hotel room in Louisiana, $25 a day for food, and a truck, with insurance and maintenance paid for by CCI.

Patricia married Michael when she was 17 and subsequently held various positions of employment not relevant to this disposition. Beginning in 1987, Patricia worked for three years as an employment counselor, or "headhunter," for a company called West Personnel (West). At that time, a college degree was not required for the position of employment counselor at West. In her last year with West, Patricia earned $34,000 to $35,000. After her separation from Michael, Patricia earned an Arizona real estate license and sold real estate from July 1992 to January 1993, during which time she earned $3,300 while incurring approximately $2,000 in expenses. From April 1993 to the time of trial, Patricia worked for the Arizona Department of Economic Security and was paid $7.98 an hour to assist people in finding jobs. A position entitled "case manager/human services," comparable to Patricia's position with West in Illinois, exists with the State of Arizona. However, the case manager position requires two years of college. Patricia estimated it would take her four years of part-time attendance to obtain a two-year college degree.

We will detail other facts pertinent to this opinion in our corresponding discussion on the issues below.

I. MAINTENANCE

Michael and Patricia separated in February 1990. Subsequently, Patricia and the two daughters moved in with David Hughes, an unrelated adult male, in California.

Patricia testified that she signed a lease, with a month-to-month tenancy, for an apartment in Arizona, roughly 25 miles from Hughes' house, and, on a weekend break during the trial below, moved out of Hughes' house and into her new apartment. She testified that she was not going to continue living with Hughes.

The trial court found that Patricia resided on a conjugal basis with Hughes from the period of separation until May 15, 1994, which was in the middle of the trial proceedings, and it therefore denied granting temporary maintenance to Patricia. However, the trial court ordered Michael to pay rehabilitative maintenance in the amount of $800 per month for 36 months. We reverse the granting of rehabilitative maintenance because of Patricia's participation in a conjugal relationship and note that our resolution of this issue has not been previously articulated in this State.

Initially, we note that we pass no moral judgment on Patricia's cohabitation with Hughes. The intention of the legislature in providing for the termination of an ex-spouse's obligation to pay maintenance when the ex-spouse receiving the maintenance has entered into a husband-wife relationship with another, whether by legal or other means, is not an attempt to control public morals. ( In re Marriage of Sappington (1985), 106 Ill. 2d 456, 467, 88 Ill. Dec. 61, 478 N.E.2d 376, quoting In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 663.) Rather:

"'An important consideration, divorced from the morality of the conduct, is whether the cohabitation has materially affected the recipient spouse's need for support because she either received support from her co-resident or used maintenance monies to support him.'" ( Sappington, 106 Ill. 2d at 467-68, quoting Bramson, 83 Ill. App. 3d at 663.)

Thus, in the case at bar, we neither condemn nor extol Patricia's conjugal cohabitation with Hughes.

Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) directs that a court may grant either permanent or temporary maintenance "after consideration of all relevant factors." 750 ILCS 5/504(a) (West 1993).

In authorizing rehabilitative maintenance, the Act aims to "provide incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency." ( In re Marriage of Cheger (1991), 213 Ill. App. 3d 371, 378, 157 Ill. Dec. 116, 571 N.E.2d 1135.) The propriety of a maintenance award and the amount and duration thereof are matters which lie within the discretion of the trial court and will not be disturbed absent an abuse of discretion. ( In re Marriage of Carini (1983), 112 Ill. App. 3d 375, 381, 67 Ill. Dec. 932, 445 N.E.2d 412.) An abuse of discretion in this area occurs where "no reasonable man would take the view adopted by the trial court." Cheger, 213 Ill. App. 3d at 378.

The Act also provides:

"Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis. " (Emphasis added.) (750 ILCS 5/510(c) (West 1993).)

This section of the Act is generally utilized in an action by one spouse seeking the modification or termination of maintenance payments granted the other spouse under section 504. (750 ILCS 5/504 (West 1993); see, e.g., Sappington (1985), 106 Ill. 2d 456, 88 Ill. Dec. 61, 478 N.E.2d 376.) A court of review will not reverse the trial court's finding concerning the existence of a conjugal relationship unless that finding is contrary to the manifest weight of the evidence. In re Marriage of Herrin (1994), 262 Ill. App. 3d 573, 576, 199 Ill. Dec. 814, 634 N.E.2d 1168.

The trial court's finding that Patricia cohabited with David Hughes on a "resident, continuing conjugal basis" (750 ILCS 5/510(c) (West 1993)) is not against the manifest weight of the evidence. The record reveals that Patricia and Hughes shared meals, bank accounts, household chores, and credit accounts, as well as exchanged holiday and birthday gifts. The two also took vacations together and maintained a sexual relationship. Thus, the trial court's decision to deny temporary maintenance to Patricia was not contrary to the manifest weight of the evidence.

In light of its finding of a conjugal relationship, however, the trial court erred in granting Patricia rehabilitative maintenance. In In re Marriage of Klein, the trial court granted maintenance to a wife in a marriage dissolution proceeding despite the wife's admission that she was cohabiting with another man. ( Klein (1992), 231 Ill. App. 3d 901, 173 Ill. Dec. 335, 596 N.E.2d 1214.) The Appellate Court, Fourth District, reversed, stating:

"There should be no distinction between whether petitioner's obligation is terminated before it ripens or after maintenance is ordered. If a party died before maintenance was awarded, or if a party remarried before the award, there would be no reason for awarding maintenance only to then require it to be terminated pursuant to section 510(c). Similarly, if a party who seeks maintenance cohabits before maintenance is awarded, the award should be denied pursuant to section 510(c). [Citation.]" (Emphasis added.) ( Klein, 231 Ill. App. 3d at 905.)

We agree, contrary to the dissent herein, which we believe emphasizes the incorrect antecedent for the verb "terminated"; it is the "obligation" to pay which is terminated, not "maintenance," under section 510(c). (750 ILCS 5/510(c) (West 1992).) Thus, the dissent's point that the wife in the instant case had received no maintenance is of no consequence. Furthermore, where a party died before maintenance was awarded, the granting of maintenance has been determined to be error. ( Stacke v. Bates (1990), 200 Ill. App. 3d 85, 91, 146 Ill. Dec. 118, 557 N.E.2d 1305.) Also, where a recipient of maintenance remarried but had the subsequent marriage declared invalid, the appellate court determined that the reinstatement of the maintenance provisions from the first marriage was properly denied. ( In re Marriage of Harris (1990), 203 Ill. App. 3d 241, 246, 148 Ill. Dec. 541, 560 N.E.2d 1138.) Thus, because Patricia cohabited on a resident, continuing conjugal basis with Hughes, and Patricia and Michael did not subsequently reconcile, Michael's obligation to pay all forms of maintenance, including rehabilitative maintenance, has been terminated.

We determine that the fact that Patricia moved out of Hughes' residence during the course of the trial below should not have influenced the trial court's decision to grant rehabilitative maintenance. The rationale regarding granting maintenance under section 504 (750 ILCS 504 (West 1993)) expressed in Klein should not be limited to situations where, as the facts indicated in Klein, the conjugal cohabitation is currently occurring (231 Ill. App. 3d at 903). Instead, we determine that maintenance should not be awarded where the party looking to receive maintenance is either cohabiting, or has cohabited, on a conjugal basis with another party since the inception of the marriage, absent a subsequent reconciliation. As the appellate court noted in In re Marriage of Harris:

"While the plain language of section 510(b) [now (c)] provides that maintenance obligations terminate upon remarriage, it does not provide for reinstatement of those obligations in the event the remarriage is declared invalid." ( Harris, 203 Ill. App. 3d at 246.)

Likewise, we determine that the reinstatement of maintenance obligations where a party has cohabited on a conjugal basis, but is no longer cohabiting on a conjugal basis, is not provided for by statute. Once the obligation to pay ...


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