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In re Marriage of Weisbruch

April 14, 1999


Appeal from the Circuit Court of McHenry County. No. 79--DV--487 Honorable Gerald M. Zopp, Jr., Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Bowman


Petitioner, Carol Weisbruch, appeals the order of the circuit court of McHenry County terminating her right to receive maintenance from respondent, John Weisbruch. Petitioner contends that the court incorrectly found (1) that the settlement agreement permitted maintenance to be terminated and (2) that she was cohabiting with another woman on a continuing, conjugal basis.

The parties were married in 1968 and the court dissolved their marriage in 1980. Pursuant to a settlement agreement incorporated in the judgment, respondent paid petitioner $1,250 per month in unallocated maintenance and child support. At the time, the parties had two minor children, Robert and Scott. By 1990, both children had reached majority, but respondent continued paying $1,250 per month until he filed the petition that is the subject of this appeal.

Respondent filed a petition to terminate child support and maintenance on May 21, 1997. He alleged that petitioner no longer required child support because the younger of the children had reached majority. Moreover, she no longer required maintenance because she had been economically rehabilitated and because she was engaged in a continuing conjugal relationship with Sandra Diesel. Before trial, the parties agreed that child support was no longer appropriate because the parties' children had attained majority.

The court conducted a hearing on the termination of maintenance. The record shows that in 1989 petitioner purchased a single-family house in Woodstock in joint tenancy with Sandra Diesel. They have lived there together since then. Petitioner testified that they purchased the home together because it was more economical to share the costs. Petitioner could not afford the upkeep of the first home she purchased after the dissolution.

The parties' children have stayed at the Woodstock house from time to time, and Diesel's secretary resided there for a while as well. Petitioner and Diesel divide the household expenses, including the mortgage, equally. They have a joint credit union account into which they both deposit their paychecks. Petitioner also deposits respondent's maintenance payments into the account. Petitioner testified that the joint account makes it easier to pay the household bills.

Petitioner and Diesel occasionally borrow money from each other. They have co-signed loans for each other. They are listed as co-owners of their respective cars. They often shop for food together and share the cost, although not always equally. They each have credit cards in their own names. Diesel is named as the executor and primary beneficiary of petitioner's will. The will gives each of petitioner's children a specific bequest of $1,000. If Diesel predeceases petitioner, the residue of her estate would go to petitioner's sister, Nancy Fredericks.

Petitioner testified that her children are the most important people in her life. Her intention in making the will was that Diesel pay off all expenses related to the house and divide the rest of petitioner's estate between her children. Petitioner admitted that she had few significant assets other than the house.

Diesel is also the primary beneficiary of petitioner's retirement fund, deferred compensation plan, and life insurance policy. Petitioner is the primary beneficiary of Diesel's life insurance policy.

Petitioner executed a health care power of attorney in 1989, designating Diesel as the agent. She did this because she did not believe her children had the ability to make such choices and did not want to burden her sister, who lives in Michigan, with the pain of making such a decision. Sometime after petitioner executed the power of attorney, Diesel became a registered nurse.

The house has three bedrooms. At the time of trial, petitioner's son Scott was living there and each occupant had a separate bedroom. Petitioner and Diesel had shared a bedroom twice for a total of 2½ years, once when Robert lived with them and once when Diesel's secretary was staying with them. On those occasions, petitioner and Diesel slept in the same bed.

Petitioner and Diesel have taken vacations together, traveling to California, Arizona, Pennsylvania, and Michigan. They exchange Christmas and birthday gifts and have sent out joint Christmas letters. They have discussed retiring together to Arizona.

The only affection petitioner and Diesel exchanged was an occasional hug. There was no sexual contact or attraction ...

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