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Thornton v. Thornton

IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2006


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 to follow Frasco or Hawking). Therefore, we reaffirm our decision in Snow not to require a petition before termination of maintenance.

3. Mortgage Payment Provision of the Settlement Agreement

The trial court's order does not offer any reason for not enforcing the mortgage payment provision in the settlement agreement. However, from the record, the petitioner, speaking directly to the judge, stated that both he and respondent had filed for bankruptcy, and the trial court was thus not the proper court to address the issue of the mortgage payments. Neither the trial court nor the respondent disputed these statements, and thus, we are inclined to accept these statements as true. We, therefore, affirm the trial court's decision not to enforce the mortgage payment provisions.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY, J., concurs.

McDADE, J., concurs in part and dissents in part.

JUSTICE McDADE concurring in part, dissenting in part:

The majority has affirmed this court's prior decision in Snow v. Snow, 322 Ill. App. 3d 953, 750 N.E. 2d 1268 (2001). I concur with that portion of the present order.

Although I believe requiring a petition to terminate maintenance seems to be a cleaner and more efficient way of proceeding, I concur with the decision to follow the earlier Third District case of In re Marriage of Gray, 314 Ill. App. 3d 249, 731 N.E.2d 942 (2000). With regard to the termination of maintenance, there is absolutely no basis in law or fact for the decision reached by the trial court or the majority. Accordingly, I dissent.

The applicable portion of the Illinois Marriage and Dissolution of Marriage Act is 750 ILCS 5/510 which deals with modification and termination of provisions for maintenance, support, educational expenses, and property disposition. 750 ILCS 5/510 (West 2004). The decision at issue in this case is governed by 5/510(c) which 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.)

The payee spouse seeking termination of maintenance (in this case, petitioner Wade Thornton) has the burden of proof. He must prove the existence of a resident, continuing, conjugal relationship. To satisfy that burden, he must prove that his former wife, Rosiemary Thornton, is involved in a de facto husband and wife relationship with a third party. In re Marriage of Sunday, 354 Ill. App. 3d 184, 820 N.E.2d 636 (2004). To demonstrate the existence of a de facto husband and wife relationship, while proof of sexual conduct is no longer necessary, something more than merely living with a person of the opposite sex is required; lesser involvement by recipient spouse does not require termination of maintenance. In re Marriage of Lambdin, 245 Ill. App. 3d 797, 613 N.E.2d 1381 (1993).

In Snow v. Snow, which we have now confirmed as the law in this district, and in the order of the majority, the following factors for examining a claim of conjugal cohabitation have been identified: (1) the length of the relationship; (3) 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. Snow v. Snow, 322 Ill. App. At 956, 750 N.E.2d at 1270.

I have read and re-read the Revised Bystanders' Report, agreed to by the parties and certified by the trial judge, and I can find no evidence of a de facto husband and wife relationship. With regard to any conjugal (husband and wife) aspects of Rosiemary's relationship, the only evidence was her testimony. As recited in the Revised Bystanders/ Report:

"She testified that Petitioner's brother stayed and slept in the basement and that she and the brother lead separate lives. She stated that at no time was there any romance or conjugal relationship between her and Petitioner's brother. She testified that the only reason that he moved in was because he did not have a place to stay, in essence was homeless, and she let him stay there out of the goodness of her heart." That testimony is wholly undisputed.

The only "evidence" presented by petitioner was (1) his own bald assertion that his brother had moved in with his former wife shortly after the entry of judgment providing for maintenance, (2) the testimony of petitioner's friend, Gary Irby, who stated he had seen the brother's car parked outside Ms. Thornton's home at least one time when he had attended a moving sale in the neighborhood in February 2004, and (3) the testimony of petitioner's aunt who testified that she had gone to respondent's home a couple of times and petitioner's brother was there, and that petitioner's brother had called her from respondent's home phone, something she knew because of her caller ID. She could not give a month, but knew that this had occurred in 2004.

The sum total of this evidence shows that Rosiemary allowed her former husband's then-homeless brother to stay in her basement in February 2004 and that they lived "separate lives" without any romance or conjugal relationship between them. There is not one iota of evidence on any of the six factors that are to be used as the basis for determination. I would say that petitioner clearly and absolutely failed to satisfy his burden.

As part of its erstwhile analysis of factor four, the majority waxes lyrical about the "financial interrelation between couples" which is "considered to have great significance by courts when determining the existence of a conjugal relationship," citing In re Marriage of Herrin, 262 Ill. App. 3d 573, 577, 634 N.E.2d 1168, 1171 (1994). Slip op at p 4. "Placement of such significance," says the majority, "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). Slip op at p 5.

Not only is there absolutely no evidence of a "financial interrelationship" between petitioner's former wife and his brother, the supreme irony here is that petitioner has never paid respondent one single penny of the maintenance he was ordered to pay. The decision of the trial court and the decision of the majority are both against the manifest weight of the evidence. The order terminating maintenance should be reversed and petitioner should be required to pay both the adjudicated arrearage and continuing maintenance as originally ordered in this case.

20060809

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