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Sunday v. Sunday

December 16, 2004


Appeal from the Circuit Court of Winnebago County. No. 01-D-804. Honorable Brian Dean Shore, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice O'malley


Petitioner, Susan E. Sunday, appeals the judgment of the circuit court of Winnebago County granting respondent Ronald E. Sunday's motion to terminate maintenance. Petitioner argues that the trial court's determination that she was cohabiting with Reginald Baker on a resident, continuing, conjugal basis (see 750 ILCS 5/510(c) (West 2002)) was against the manifest weight of the evidence. We agree and reverse.

The following facts are taken from the record on appeal. On February 13, 1972, the parties were married. The parties had two children, who were grown at the time dissolution proceedings were instituted. On August 16, 2001, the trial court entered an order dissolving the marriage and incorporating the parties' marital settlement agreement into the judgment of dissolution. The marital settlement agreement provided, among other things, that respondent would pay petitioner $200 per month until the trial court's review, set to occur four years after the judgment of dissolution.

Following the dissolution, the parties each petitioned for an order of protection against the other. The trial court granted petitioner's petition for an order of protection, and on October 2, 2003, the order of protection was extended for another two years.

On November 11, 2003, respondent filed a petition to terminate maintenance, alleging that petitioner was cohabiting with Baker on a resident, continuing conjugal basis. On March 23, 2004, the trial court held a hearing on respondent's petition to terminate, during which the following evidence was adduced.

In June 2003, petitioner met Baker and, soon after, petitioner and Baker began a dating relationship, which included sexual relations and which was ongoing at the time of the hearing. Petitioner testified that, during this relationship, she resided continually on Ninth Avenue. Baker testified that, during his relationship with petitioner, he resided continually at Sun Valley Terrace, where he maintained an apartment. In addition to renting the apartment, Baker maintained utility services, including phone and electric.

Baker and petitioner testified that Baker would often stay overnight at petitioner's house. Each agreed that the frequency of his stays at certain times reached four to five nights a week. Both Baker and petitioner testified, however, that sometimes Baker would stay overnight only one or two times a week. Petitioner explained that she had Baker stay overnight because she was frightened of respondent.

Petitioner testified that respondent resided in a house across the street from hers, and that he harassed not only her and Baker, but any other male guest she invited into her home. Specifically, she testified that respondent created displays in his front window, including a Confederate flag, mannequins on which he would place cards bearing messages, such as "$200 [per] w[ee]k. 22 months left to pay," or mannequins that he would arrange in sexually suggestive poses. Additionally, petitioner testified that respondent placed signs bearing the inscription, "dope house closed," on her property and even screwed one such sign to a tree in her front yard. Petitioner also testified that respondent would observe her house with binoculars and make loud noises, such as playing his stereo at full volume, blowing whistles, or banging a cymbal when she was present. Petitioner testified that, following the divorce, respondent would engage in this harassing behavior for awhile, then stop, only to begin the harassing behavior anew. Baker also testified to confrontations with respondent during which respondent attempted to intimidate Baker.

Petitioner explained that, as a result of this behavior, she was afraid of respondent. Because of this, petitioner asked Baker to stay overnight more frequently than she otherwise would have, specifically during October 2003, when respondent retained a private investigator to place petitioner and Baker under surveillance.

This testimony was offered to counter testimony of respondent's private investigator, Robert Sadler. Sadler testified that, during the last week of October 2003, he observed Baker's car parked overnight at petitioner's house for five nights. Sadler testified that during that week he observed that Baker's car had been moved only once. Further, he testified that he did not see either Baker or petitioner in or about the house, as all of the blinds were drawn shut.

Regarding the activities in which Baker and petitioner engaged, petitioner testified that she had a high-quality exercise room that Baker, among others, used. In addition to Baker, petitioner's sister and three nieces used the exercise room regularly. Baker testified that he tried to exercise early in the morning, so even if he returned to his apartment the night before, he would arrive at petitioner's house early in the morning.

Petitioner testified that she did not cook meals for Baker; rather, she made a daily meal for her grandson and, if there were leftovers, Baker was free to eat them whenever he chose. Under questioning from respondent's attorney, Baker agreed that he ate up to a meal a day at petitioner's house. Baker testified that, when he would eat at petitioner's home, he would generally replace the food or other items he consumed. Likewise, if Baker used petitioner's car, he would give her money for gas. Petitioner and Baker both testified that Baker had keys to petitioner's car and house and was given leave to come into the house whenever he wanted.

Petitioner and Baker testified that Baker kept no furniture, personal property, or clothes at petitioner's house. Petitioner testified that, on occasion, she would wash Baker's work pants along with her dirty clothes. Petitioner did not otherwise do Baker's laundry. Baker testified that, at petitioner's home, he mowed the lawn, raked leaves, took out garbage, and shoveled the walk after snowstorms. He also testified that he did not do these chores ...

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