Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois, No. 96--D--14796 Honorable Vincent Cerri, Judge Presiding.
The opinion of the court was delivered by: Justice Slater
The petitioner, Dawn A. Snow, appeals from the order of the circuit court of Will County terminating her right to receive maintenance from the respondent, William A. Snow. On appeal, Dawn contends that the trial court erred in finding that she engaged in a continuing, conjugal relationship with another man. On cross-appeal, William argues that the trial court erred in terminating maintenance from the date of his petition rather than the date the cohabitation began. For the following reasons, we affirm the trial court's order granting William's petition. However, we remand this cause for the trial court to determine when Dawn began the cohabitation and to terminate her payments as of that date.
The record reflects that the Judgment of Dissolution was entered on February 27, 1998. In the Judgment, William was ordered to pay $1,800.00 per month in maintenance to Dawn until May 31, 1999. Thereafter, a reduced amount of maintenance was to be paid pursuant to a schedule set forth in the marital settlement agreement. The terms of the marital settlement agreement, which were incorporated into the Judgment of Dissolution, also stated that "maintenance shall terminate after the above payments have been made or earlier upon order of court."
On May 14, 1999, William filed a petition to terminate maintenance. In the petition, William alleged that Dawn had been engaged in a continuing conjugal relationship with Jaime Littrell between August 1997 and February 1999.
At the hearing on the petition, Jaime Littrell testified that sometime in 1997 he was living with his mother who was preparing to move out of state. At that time, Dawn invited him to move into her home. Jaime moved into Dawn's son's old room.
Jaime testified that when he moved into her home, Dawn told him that he did not need to initially pay rent because her husband was paying the mortgage. However, she said that in March 1998 he would have to pay her $300 per month. Jaime said that they had an agreement to split the cost of utilities and groceries. He also maintained the lawn and the pool.
According to Jaime, in March 1998 he began paying rent. He paid the rent in cash because he had no checking account. He said Dawn gave him receipts for the payments, but he was unable to produce any receipts at the hearing.
Jaime also testified that he and Dawn had sexual relations three to four times a week during the year and a half that they lived together. Further, he admitted that on one occasion he secretly videotaped them having sexual relations without Dawn's consent. He described their relationship during that time as "sex partners."
Dawn testified that Jaime lived in her home for a year and a half. She said that she allowed Jaime to live in her home because he had no place to live after his mother moved out of state. According to Dawn, she only offered him one of her bedrooms until he got himself "up on his feet." During that time, he never paid her any rent or contributed toward her mortgage payments. She said Jaime paid for his own groceries and telephone charges but sometimes he would give her money for food, gas, and chemicals for the pool. She also said Jaime did some yard work and work around the pool.
Dawn admitted that while they lived together, she and Jaime socialized about two to three times a month for dinner, a movie, or drinks. They sometimes went out with her friends, but never with his. They exchanged Christmas and birthday presents.
Dawn denied any sexual relationship with Jaime. However, she admitted that they had sexual relations in January 1999 after they had been out together and she had had too much to drink. Finally, Dawn noted that during the time Jaime resided in her home he never paid for any of her personal expenses, they did not co-mingle their funds, and they owned no joint credit cards.
After hearing all the evidence, the trial court found that Jaime's testimony was more credible than Dawn's. Therefore, it found that William established that Dawn engaged in a continuing conjugal relationship with Jaime within the meaning of the statute. Accordingly, it terminated William's maintenance obligation from the date he filed his petition and ordered Dawn to reimburse William for the overpayment.
On appeal, Dawn argues that the trial court erred in terminating her maintenance because William failed to prove that she and Jaime engaged in a continuing, conjugal relationship.
Illinois law provides for termination of maintenance when there is a resident, continuing, conjugal relationship between the maintenance recipient and a third party. 750 ILCS 5/510(c) (West 1998). To prove a continuing, conjugal relationship, an ex-spouse must show that the former spouse is involved in a de facto husband and wife relationship. In re Marriage of Leming, 227 Ill. App. 3d 154, 590 N.E.2d 1027 (1992). To determine if such a relationship exists, courts have examined the following factors: (1) the length of the relationship; (2) the amount of time the couple spends together; (3) the nature of activities engaged in; (4) the interrelation of their personal affairs; (5) whether they vacation together; and (6) whether they spend holidays together. In re the Marriage of Herrin, 262 Ill. App. 3d 573, 634 N.E.2d 1168 (1994). A reviewing court gives great deference to the trial court's factual findings because the trial court stands in the best position to weigh the credibility of all the witnesses. In re Jones, 285 Ill. App. 3d 8, 673 N.E.2d 703 ...