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In re Marriage of Miller

Court of Appeals of Illinois, Second District

May 28, 2015

In re MARRIAGE OF LORENA K. MILLER, Petitioner-Appellant, and JEFFREY A. MILLER, Respondent-Appellee

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Appeal from the Circuit Court of Kane County. No. 05-D-313. Honorable Rene Cruz, Judge, Presiding.

Phyllis J. Perko, of Law Offices of Harlovic & Perko, of West Dundee, for appellant.

Michael C. Doyen and Christopher M. Doyen, both of Law Offices of Robert A. Chapski, Ltd., of Elgin, for appellee.

McLaren and Burke, Justices concurred in the judgment and opinion.


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[¶1] Respondent, Jeffrey A. Miller, petitioned the trial court pursuant to section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/510(c) (West 2012)) for the termination of maintenance payments to petitioner, Lorena K. Miller. The trial court granted the petition, finding petitioner was cohabiting with Michael Meyers on a resident, continuing, and conjugal basis. In reaching this determination, the court considered Facebook pictures and posts written by Lorena and Michael, but it did not consider posts written by third parties. The court stated that the posts were relevant to its consideration of how Lorena and Michael presented their relationship to others. The court also allowed Jeffrey to submit several financial documents over Lorena's hearsay objection. The court did not reach the question of modification of maintenance, which each party had raised as an alternative. Lorena appeals. For the reasons that follow, it was not improper for the court to consider the Facebook posts. Likewise, Lorena's argument concerning the financial documents fails.

[¶2] However, the trial court's overall finding that Lorena cohabited with Michael so as to have a de facto marriage, as opposed to an intimate dating relationship, was against the manifest weight of the evidence. The six-factor analysis that the trial court applied is insufficient to distinguish an intimate dating relationship from a de facto marriage if unaccompanied by an understanding that the facts falling into each category must achieve a gravitas akin to marital behavior. The common-law standard of a de facto marriage is codified more precisely as cohabitation (with its three elements being resident, continuing, and conjugal). Therefore, while mindful that each case will present unique circumstances, we note that here the absence of certain traditional components of a marital relationship, such as intended permanence and mutual commitment (speaking to the continuing and conjugal elements), a shared day-to-day existence (speaking to the conjugal and residential elements), and the shared use and maintenance of material resources (speaking to the residential element), created a significant hurdle for Jeffrey. The trial court did not adequately consider the gravity (or lack thereof) of facts that fell into each of the six categories, nor did it adequately consider the absence of certain traditional components of a marital relationship. Though we defer to the trial court's assessment of the underlying facts, those facts do not establish a de facto marriage as required to permanently terminate maintenance. We thus reverse and remand.


[¶4] In 2007, Lorena and Jeffrey divorced after 25 years of marriage. They had three children, all of whom had reached the age of majority and two of whom were past their college years. The court split all nonretirement marital assets 55/45 in favor of Lorena. It split all retirement assets 50/50. Jeffrey, who was the founder and CEO of a corporation, was ordered to pay permanent maintenance at a rate of 41.44% of his income for the first four years, and 21.44% of his income thereafter. This would be accomplished by paying Lorena $3,000 monthly, with an annual " trueup" depending upon the size of Jeffrey's bonus. However, the court capped at $500,000 the total amount from which the true-up was to be calculated. Therefore, although Jeffrey earned as much as $800,000-plus per year following the divorce, Lorena's annual maintenance was

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ultimately capped at $107,200 ($500,000 x 21.44%).

[¶5] Both parties started dating prior to the finalization of the divorce. Jeffrey remarried that same year. Lorena joined "" and went on dates with three different men, including Michael. By 2007, she entered into an exclusive dating relationship with Michael.

[¶6] In February 2013, Jeffrey petitioned to terminate maintenance pursuant to section 510(c), arguing that Lorena cohabited with Michael on a resident, continuing, and conjugal basis. 750 ILCS 5/510(c) (West 2012). In the alternative, Jeffrey petitioned to modify maintenance pursuant to section 510(a), arguing that Lorena had not made reasonable efforts to become economically self-sufficient. 750 ILCS 5/510(a) (West 2012).

[¶7] On December 12, 2013, before the court had ruled on Jeffrey's petition, Lorena petitioned to increase maintenance pursuant to section 510(a). Id. She argued that there had been a substantial change in circumstances, in that: (1) although the court contemplated in its dissolution judgment that Lorena would obtain a four-year degree and then a job, and although Lorena did in fact obtain a four-year degree, she had been unable to gain employment; (2) Jeffrey's income had increased since the divorce; and (3) Lorena's cost of living had increased due to inflation.

[¶8] On December 17, 2013, the trial court began a multiday hearing on the petitions. Lorena testified that, when she married Jeffrey 32 years ago, she had only a high school diploma. She worked as a bank teller until she had their first child. Around that time, the family moved to London for Jeffrey's job. They stayed in London for several years. Lorena did not work outside the home while in London. Instead, she ran the household. Back in the United States, Lorena continued to stay home with the children. When the children were older, Lorena studied to obtain a Realtor's license. In her best year, she grossed $50,000. However, she ran her own office and, after accounting for overhead, she netted only $15,000. She last worked as a Realtor in the early 2000's. Jeffrey essentially confirmed this timeline.

[¶9] Lorena joined "" in 2006, after the marriage had deteriorated. She connected with Michael over golf and music. Michael began spending the night at Lorena's home approximately twice per month. Eventually, according to Michael, the frequency increased such that he spent 70% of his weekends at Lorena's home. (Lorena equivocally testified that the frequency was lower).

[¶10] In 2011, Lorena purchased a $245,000 townhome on a Lake in the Hills golf course. She wanted to be on this particular golf course, in part because the golf club allowed nonmarried partners to share a joint membership. A joint membership saved the members thousands of dollars per year vis a vis two individual memberships. She and Michael looked into several golf clubs, and this was the only club in the area that offered joint memberships to nonmarried applicants. The club termed these nonmarried members " significant others."

[¶11] Lorena and Michael developed a weekly routine. Michael arrived at Lorena's home late Thursday evening, after playing with a band (Lisle band) at a restaurant and bar called Mullen's. As confirmed by Michael, Lorena never went to observe the Lisle band. Michael never woke Lorena up when he arrived late. Sometimes, he would quietly slip into her room to sleep, but other times he would take one of the two guest rooms. On Friday, Michael would work from Lorena's

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house. This saved him an hour commute. However, Lorena occupied herself on Fridays, usually working toward her degree. Additionally, though uncorroborated, Lorena testified that she went to church on most Sundays, without Michael. On most weekends, Lorena and Michael played golf. They did not always golf together; they mixed it up with friends. When the weather was poor, such as in the winter months, Michael came over only two weekends per month.

[¶12] When Michael was not at Lorena's for the weekend, and during the rest of the week, he resided at his own home in Wadsworth. With rare exceptions, Lorena did not sleep at his house. Approximately six times over the course of their relationship, Lorena, Michael, and several friends went to Ravinia. On those occasions, Lorena would stay at Michael's home because it was closer.

[¶13] Over the course of the six-year relationship, Lorena and Michael went on approximately 14 trips together, usually sleeping in the same bed. In fact, Lorena went on only two trips outside of Illinois that did not include Michael: one girls' weekend and one mother-daughter trip. On one occasion, Lorena won a six-day trip to Lake Tahoe. The prize had to be used within two weeks, or it would expire. Lorena invited both a girlfriend and Michael. Only Michael could come, and he paid for his own flight. On most trips, however, other friends were also present. For example, each year, they went to Pebble Beach to volunteer at a golf tournament. On these trips, they socialized with a group of golfing buddies. On at least one of the Pebble Beach trips, they stayed in a room with another couple and split the costs four ways. Similarly, they participated in tournaments in Door County. Twice, they went to an annual blues festival in Colorado. About six times, they went to Indianapolis to watch Butler University basketball and to visit Michael's daughter. Michael's daughter attended school at Butler, so, when in Indianapolis, they took her out to dinner. On three occasions, they went to Florida. On one trip, they traveled separately. Each met up with his or her own respective children, and, on some nights, they shared dinners. On each of the trips, Lorena and Michael each paid their own expenses and split the costs of meals.

[¶14] Lorena and Michael celebrated some occasions together. They spent two out of six Christmases and two out of six Thanksgivings together. On Thanksgiving in 2012, they took a " family style" photo together, with Michael's daughter and granddaughter and Lorena's youngest son. They put the camera on a self-timer and sat on the couch. The picture was admitted into evidence both as an individual photograph and as a Facebook post. Lorena bought Christmas presents for Michael. The most expensive present she ever bought for him was a set of decorative framed vinyl records. Lorena also helped organize a 60th birthday party for Michael. The party was held in the golf course club room. Lorena paid for about one-half of the cost of the party. Additionally, Michael organized a baby shower for his daughter at the club room, and Lorena attended. Michael attended Lorena's son's 2008 high school graduation and his 2012 college graduation.

[¶15] According to both Lorena and Michael, in 2007 or 2008, soon after Michael and Lorena started dating, Michael brought up the subject of marriage but did not ask Lorena to marry him. Lorena told him that she was not looking for marriage at that time. She explained that she had just endured a difficult divorce. She advised Michael not to raise the topic again; it would be raised, if ever, only by her.

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Lorena and Michael both testified that, in the fall of 2011, the romantic " spark" between them began to fade. Neither recalled engaging in sexual intercourse after that time. However, Jeffrey arguably impeached Lorena on this point, establishing that, when Lorena was asked during a 2013 deposition how long it had been since she and Michael had engaged in sexual intercourse, she answered, " I don't know; it's been months." For a period, Lorena and Michael's relationship was strained, but, throughout 2011 and 2012, they continued to share the golf club membership, spend weekends together, and take trips together. At trial, Lorena characterized Michael as a friend. Likewise, Michael characterized Lorena as " a friend [whom] I admire." By the fall of 2013, however, Lorena believed that the relationship was over in all respects. In September 2013, Michael lost his job, terminated his golf club membership, and stopped spending weekends at Lorena's house.

[¶16] Over the course of the relationship, the parties did not commingle finances. Neither party helped the other with housing costs or household chores (although Michael did pick up after Lorena's dog on weekends). Neither party had keys to the other's house or car. Neither party named the other as a beneficiary to any financial accounts or insurance policies. With the exception of a letter concerning their shared golf cart, Michael did not receive mail at Lorena's home. Each party paid for his or her own meals, travel expenses, and entertainment. Minor points of contention on this issue concerned the degree to which Michael saved gas money by working from Lorena's house on Fridays and the degree to which each saved money by entering into a joint golf club membership and sharing a golf cart and its costs.

[¶17] Jeffrey called several of Lorena and Michael's mutual friends to testify. Thomas Detelich testified that he met Michael several years ago through Lorena. He and his wife, Diane, socialized with Lorena and Michael about once per month. Lorena socialized with Diane weekly. Florence Brennan also testified that she met Michael several years ago through Lorena. She socialized with the two of them several times, golfing, going out to dinner, and listening to Michael's jazz group (Elgin band). Michael confirmed that, before he and ...

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