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Thornton v. Thornton

August 9, 2006

IN RE MARRIAGE OF WADE S. THORNTON, PETITIONER-APPELLEE,
v.
ROSIEMARY THORNTON, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. No. 99--D--375. Honorable Stephen Kouri, Judge, Presiding.

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

Published opinion

The respondent, Rosiemary Thornton, appeals the order of the circuit court of Peoria County granting the petition by her ex-spouse, Wade S. Thornton, to terminate his obligation to make maintenance payments to her. Respondent also asks this court to change our decision in In re Marriage of Snow, 322 Ill. App. 3d 953, 750 N.E.2d 1268 (2001), which does not require a petition for hearing before termination of maintenance begins. Finally, respondent requests this court to remand and order the trial court to enter judgment in her favor on the issue of past-due mortgage payments owed to her by petitioner as set forth in their martial settlement agreement. We affirm the trial court's order granting termination, reaffirm our decision in Snow, and affirm the trial court's decision not to enforce the mortgage payment provision.

BACKGROUND

On June 2, 1999, petitioner filed a petition for dissolution of marriage against the respondent. On March 19, 2001, judgment for dissolution of marriage was entered which included a settlement agreement between the parties. On September 14, 2004, respondent filed a petition for indirect civil contempt and a petition for maintenance, based on allegations that petitioner had failed to make any maintenance or mortgage payments as set forth in the settlement agreement. On December 30, 2004, the trial court entered a finding that there existed $8,250 of unpaid maintenance, plus statutory interest, but the issue of termination of maintenance was reserved and set for a future hearing. On June 7, 2005, an evidentiary hearing was held to address the issue of termination. No transcript of the hearing exists, but from the bystander's report, petitioner testified that his brother had moved in with respondent and that they were engaged in a conjugal relationship. Petitioner called two witnesses who both provided circumstantial evidence of this relationship. Respondent admitted to moving in with the petitioner's brother, but denied the existence of a conjugal relationship. Respondent claimed that she had allowed the petitioner's brother to move in "out of the goodness of her heart" because "he did not have a place to stay [and] was in essence, homeless." On June 23, 2005, the trial court entered an order abating in full all maintenance pursuant to section 510(c) of the Illinois Marriage and Dissolution of Marriage Act. 750 ILCS 5/510(c) (West 2002). The trial court made no mention of the mortgage payments in the order. On July 19, 2005, respondent filed a motion for reconsideration, and on September 19, 2005, the court entered an order denying the motion based on In re Marriage of Snow, 322 Ill. App. 3d 953, 750 N.E.2d 1268 (2001). On October 1, 2005, a notice of appeal was filed by the respondent.

ANALYSIS

1. Conjugal Relationship

"[T]he obligation to pay future maintenance is terminated *** if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis." 750 ILCS 5/510(c) (West 2002). Courts will examine this issue by considering 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 Marriage of Snow, 322 Ill. App. at 956, 750 N.E.2d at 1270.

As a question of fact, whether a conjugal relationship exists involves determinations of credibility, weight to be given testimony, and reasonable inferences to be drawn from evidence, all of which are decisions best made by the trier of fact. In re Marriage of Marshall, 278 Ill. App. 3d 1071, 1079, 663 N.E.2d 1113, 1119 (1996). A reviewing court must be careful not to substitute its judgment in place of the trial court's judgment and thus should limit its inquiry to: (1) whether an evidentiary basis exists that supports the trial court's determination and, if so, (2) whether there exists contradictory evidence that would render such determination manifestly erroneous. In re Marriage of Bates, 212 Ill. 2d 489, 524, 819 N.E.2d 714, 733 (2004).

Using the factors outlined in In re Marriage of Snow, 322 Ill. App. at 956, 750 N.E.2d at 1270, we first note the bystander's report establishes that respondent allowed the petitioner's brother to move in with her "out of the goodness of her heart" because he "did not have a place to stay [and] was in essence, homeless." From this, it reasonably can be inferred that petitioner's brother was destitute at the time and that respondent was financially supporting him. Factor four of the analysis deals with such financial interrelation between couples and is considered to have great significance by courts when determining the existence of a conjugal relationship. In re Marriage of Herrin, 262 Ill. App. 3d 573, 577, 634 N.E.2d 1168, 1171 (1994) (conjugal relationship found where spouse supported third party by feeding him, allowing him to use her car and paying third party's expenses). Placement of such significance is in accord with the overarching purpose of the statute, which is to prevent the injustice of requiring someone to continue paying maintenance to an ex-spouse who uses the payments to support someone else or is simultaneously receiving support from someone else. In re Marriage of Weisbruch, 304 Ill. App. 3d, 99, 105, 710 N.E.2d 439, 444 (1999). As previous courts have done, we also place great significance in this type of financial interrelation and duly note that the situation in this particular case exemplifies the very injustice that the statute was created to prevent, i.e., the use of maintenance by an ex-spouse to support a third party. We find that there was a sufficient evidentiary basis for the trial court's finding of a resident, continuing conjugal relationship.

The only contradicting evidence appearing in the report is respondent's testimony denying the existence of a conjugal relationship. While the trial court did not outline the reasoning for its order to terminate maintenance, from its decision, it is safe to assume that the trial court did not believe respondent's testimony. It is universally accepted that a trial court is in a far superior position to determine the credibility of witness testimony (In re Marriage of Marshall, 278 Ill. App. 3d 1071, 1078-79, 663 N.E.2d 1113, 1119 (1996)), and thus, we refuse to second-guess the trial court's determination on such matters.

Therefore, since there is a sufficient evidentiary basis from which the trial court reasonably could have inferred a resident, continuing conjugal relationship and since the only contradicting evidence was testimonial in nature, this court refuses to second-guess the trial court and concludes that its decision to terminate maintenance was not against the manifest weight of the evidence.

2. Termination of Maintenance Before Petition Hearing

Respondent suggests that a petition before termination would better serve public policy and asks this court to follow In re Marriage of Frasco, 265 Ill. App. 3d 171, 638 N.E.2d 655 (1994) and In re Marriage of Hawking, 240 Ill. App. 3d 419, 608 N.E.2d 327 (1992) in requiring such a petition. This court in In re Marriage of Snow, 322 Ill. App. 3d 953, 750 N.E.2d 1268 (2001), has already fully considered and rejected these arguments in adopting In re Marriage of Gray, 314 Ill. App. 3d 249, 731 N.E.2d 942 (2000) (declining ...


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