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In re Marriage of Walther

Court of Appeals of Illinois, Third District

April 3, 2018

In re MARRIAGE OF PASHA N. WALTHER, Petitioner-Appellant, and LEILANI E. WALTHER, Respondent-Appellee.

          Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, No. 14-D-1294 Illinois, Honorable Kenneth L. Zelazo, Judge, Presiding.

          JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justice Schmidt concurred in the judgment and opinion. Presiding Justice Carter dissented, with opinion.



         ¶ 1 The petitioner, Pasha N. Walther, appeals from the circuit court's denial of his petition to terminate maintenance. Pasha argues that the court failed to find that the respondent, Leilani E. Walther, was cohabitating on a resident, continuing conjugal basis with Christopher Sawyer, which justified terminating maintenance.

         ¶ 2 FACTS

         ¶ 3 On December 14, 2014, the circuit court entered a judgment for the dissolution of the marriage of Leilani and Pasha Walther. The judgment incorporated by reference the marital settlement agreement entered by the parties. Section 4 of the agreement obliged Pasha to pay spousal maintenance to Leilani in the amount of $2500 per month for a period of 5 months and $3000 per month for a period of 91 months. Section 4.3 of the agreement stated Pasha's maintenance obligation would terminate "if Leilani cohabits with another person on a resident, continuing conjugal basis, in accordance with Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act [(Act)] 750 ILCS 5/510(c)."

         ¶ 4 On April 28, 2016, Pasha filed a petition to terminate maintenance. The petition alleged Leilani had been in a dating relationship with Christopher since early 2015. In the summer of 2015, Leilani moved into Christopher's residence and continued to live with Christopher while maintaining a separate apartment.

         ¶ 5 At the hearing on the petition, Pasha called Leilani as an adverse witness. Leilani testified that the parties separated on September 1, 2013. In December 2013, Leilani reconnected with Christopher, a man that she had known since she was 15 years old. In March 2014, Leilani visited Christopher in Gretna, Louisiana. In total, Leilani made four trips to Louisiana to see Christopher in 2014. During the trips, she slept at Christopher's house.

         ¶ 6 On July 28, 2014, Pasha filed a petition for dissolution of marriage. At the time, Leilani had a relationship with Christopher; however, she "wouldn't call it dating." Leilani acknowledged that her relationship included sexual intercourse.

         ¶ 7 In October 2014, Pasha kicked Leilani out of the parties' residence in Plainfield, Illinois. Leilani moved back to Louisiana where she initially stayed with a friend until she was able to rent an apartment. On November 1, 2014, Leilani rented a one-bedroom apartment in Gretna. The apartment was located at 1615 Carol Sue Avenue, and it was approximately 2½ miles from Christopher's house. Initially, Leilani's apartment was sparsely furnished, and she slept on a mattress on the floor. Leilani said the apartment was her residence, but she acknowledged that she had stayed at Christopher's house "at different times." Leilani denied staying at Christopher's house on "a regular and continuing basis." However, counsel for Pasha impeached Leilani's statement with her deposition testimony that she "began regularly sleeping" at Christopher's house in May 2015. Leilani slept at Christopher's residence "on a daily basis" during the months of August, September, October, and November 2015. While Leilani stayed at Christopher's house, she had a monogamous relationship with Christopher.

         ¶ 8 In addition to staying at Christopher's house, Leilani kept some of her clothing at Christopher's house and occasionally did her laundry there, washed Christopher's clothing, bought groceries for Christopher's household, stored groceries in Christopher's refrigerator, and prepared meals at the house. Leilani did not have a key to Christopher's house, but she freely entered and left the house through an unlocked back door.

         ¶ 9 On November 8, 2015, the parties' daughter, Ashley, moved to Louisiana to live with Leilani. After Leilani picked Ashley up at the airport, they drove to Christopher's house where Leilani had been staying for the past seven months. There, Leilani directed Ashley to the bedroom that she was to share with Christopher's daughter, Amber. At the time, Leilani shared a bedroom with Christopher.

         ¶ 10 After Ashley moved in, Leilani and Christopher went on trips to Biloxi, Mississippi, to attend concerts. On some of these trips, Leilani and Christopher spent the night in Biloxi while Ashley stayed at Christopher's house. Leilani split the cost of these trips with Christopher.

         ¶ 11 Between July 2015 and April 2016, Leilani occasionally cashed Christopher's business checks using her personal account. Leilani was otherwise unfamiliar ...

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