In re Marriage of Sunday

Case Date: 12/16/2004
Court: 2nd District Appellate
Docket No: 2-04-0480 Rel

No. 2--04--0480



IN THE
 

APPELLATE COURT OF ILLINOIS
 

SECOND DISTRICT
  


In re MARRIAGE OF
SUSAN E. SUNDAY,

            Petitioner-Appellant,

and

RONALD E. SUNDAY,

            Respondent-Appellee.

)
)
)
)
)
)
)
)
)
)
Appeal from the Circuit Court
of Winnebago County.


No. 01--D--804


Honorable
Brian Dean Shore,
Judge, Presiding.

PRESIDING JUSTICE O'MALLEY delivered the opinion of the court:

Petitioner, Susan E. Sunday, appeals the judgment of the circuit court of Winnebago Countygranting respondent Ronald E. Sunday's motion to terminate maintenance. Petitioner argues that thetrial 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 partieswere married. The parties had two children, who were grown at the time dissolution proceedingswere instituted. On August 16, 2001, the trial court entered an order dissolving the marriage andincorporating the parties' marital settlement agreement into the judgment of dissolution. The maritalsettlement agreement provided, among other things, that respondent would pay petitioner $200 permonth 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 theother. 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 thatpetitioner 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 followingevidence was adduced.

In June 2003, petitioner met Baker and, soon after, petitioner and Baker began a datingrelationship, 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. Bakertestified 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 utilityservices, 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. BothBaker and petitioner testified, however, that sometimes Baker would stay overnight only one or twotimes a week. Petitioner explained that she had Baker stay overnight because she was frightened ofrespondent.

Petitioner testified that respondent resided in a house across the street from hers, and that heharassed 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. 22months 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 herproperty and even screwed one such sign to a tree in her front yard. Petitioner also testified thatrespondent would observe her house with binoculars and make loud noises, such as playing his stereoat 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, onlyto begin the harassing behavior anew. Baker also testified to confrontations with respondent duringwhich respondent attempted to intimidate Baker.

Petitioner explained that, as a result of this behavior, she was afraid of respondent. Becauseof 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 petitionerand Baker under surveillance.

This testimony was offered to counter testimony of respondent's private investigator, RobertSadler. Sadler testified that, during the last week of October 2003, he observed Baker's car parkedovernight 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 orpetitioner 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 shehad a high-quality exercise room that Baker, among others, used. In addition to Baker, petitioner'ssister and three nieces used the exercise room regularly. Baker testified that he tried to exercise earlyin the morning, so even if he returned to his apartment the night before, he would arrive at petitioner'shouse early in the morning.

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

Petitioner and Baker testified that Baker kept no furniture, personal property, or clothes atpetitioner's house. Petitioner testified that, on occasion, she would wash Baker's work pants alongwith her dirty clothes. Petitioner did not otherwise do Baker's laundry. Baker testified that, atpetitioner's home, he mowed the lawn, raked leaves, took out garbage, and shoveled the walk aftersnowstorms. He also testified that he did not do these chores regularly, but had done them only onceor twice each. Baker testified that petitioner regularly cut her own grass.

Petitioner and Baker testified that they did not have any intertwined financial dealings. Theyheld no joint debts, bank accounts, or property. Neither had made the other a beneficiary onretirement accounts or insurance policies. Petitioner and Baker both testified that, to avoid havinga bank account attached to satisfy an outstanding judgment against her, petitioner maintained no bankaccount and operated on a cash-only basis.

Petitioner testified that she made about $100 per week working as a personal trainer, hairdresser, and house cleaner. Baker testified that he made about $300 to $350 per week as a serverat a restaurant and as a professional dancer. Both denied that they contributed money to help supportthe other.

Petitioner and Baker have professed their love for each other, notably on Valentine's Daycards admitted into evidence, but they denied that they have talked of marriage. Instead, eachmaintained that he or she wanted his or her personal space and was satisfied in their currentrelationship. Both admitted that they had spent all of the holidays together since they met, but theyhad not taken vacations together. The evidence showed that neither had gone on a vacation at anytime since they met.

Following the presentation of evidence, the trial court made a number of factual findings. Thetrial court found that petitioner and Baker were engaged in a sexual relationship, which began as earlyas June 2003. The court determined that Baker ate meals with petitioner on a daily basis. The courtalso determined that Baker and petitioner had professed their love for each other as early as July2003, and had been together for every holiday since July 2003. It determined that they did notvacation together, but that there was no evidence that either of them took any vacation during thattime. The trial court determined that there was no evidence that Baker and petitioner held any jointbank accounts, but it attributed that lack to petitioner's admitted creditor problems. The trial courtalso found that petitioner and Baker shared household and domestic chores and shared keys topetitioner's house and to each other's vehicles. The trial court made no finding concerning petitioner'sand Baker's expenses or about Baker's income, other than to note that it was small. Last, the courtstated: "That while the [c]ourt finds the evidence concerning [respondent's] conduct disturbing, itdoes not rise to the level of a clear reason why Mr. Baker was residing at the residence in light of thefact that he continued to live there after the conduct ceased." The trial court held that, beginning inNovember 2003, petitioner and Baker were cohabiting on a "resident, continuing, conjugal basis." Petitioner timely appeals.

On appeal, petitioner contends that the trial court's determination that she and Baker werecohabiting on a resident, continuing, conjugal basis was against the manifest weight of the evidence. Petitioner contends that the trial court erred in determining both that Baker was residing at her houseand that they were cohabiting. We find little in petitioner's arguments to support her attempt tobifurcate her argument into residency and conjugal cohabitation; rather, they are facets of the singularcontention that, under the totality of the circumstances adduced into evidence, the trial court'sdetermination that petitioner and Baker were cohabiting on a resident, continuing, conjugal basis wasagainst the manifest weight of the evidence.

We begin with a brief review of the applicable law and standard of review. Illinois lawprovides that a party's maintenance may be terminated when it is shown that the party is engaged ina resident, continuing, conjugal relationship with a third party. 750 ILCS 5/510(c) (West 2002); Inre Marriage of Snow, 322 Ill. App. 3d 953, 956 (2001). To prove the existence of a resident, continuing, conjugal relationship, one ex-spouse must show that the other is involved in a de factohusband and wife relationship with a third party. Courts will examine this issue by considering thefollowing factors: (1) the length of the relationship; (2) the amount of time the couple spendstogether; (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, 322 Ill. App.3d at 956. The purpose underlying the statutory termination of maintenance when the recipientspouse cohabits with a third party is to remedy the inequity created when the recipient spousebecomes involved in a husband-wife relationship but does not formalize the relationship, so that heor she can continue to receive maintenance from his or her ex-spouse. In re Marriage of Arvin, 184Ill. App. 3d 644, 649 (1989). Each case seeking a termination of maintenance based on the recipientspouse's conjugal cohabitation rests on its own unique set of facts (In re Marriage of Sappington, 106Ill. 2d 456, 466 (1985)), and to preserve the primacy of the trial court's position in finding thoseunique facts, a court of review will not disturb the trial court's determination concerning the existenceof a de facto husband-wife relationship unless that determination is contrary to the manifest weightof the evidence. Snow, 322 Ill. App. 3d at 956.

With these principles in mind, we turn to the evidence in the record. The evidence showedthat petitioner and Baker first met in June 2003. At the time of the hearing, therefore, petitioner andBaker's relationship had lasted nine months. We note as well that the trial court found that they begancohabiting in November 2003, a period of only four months before the hearing. We find this periodto be extremely brief, especially in light of the other termination-of-maintenance cases cited by theparties. In all cases where conjugal cohabitation has been found, the relationships have lasted longerthan petitioner's and Baker's. For instance, in Snow, 322 Ill. App. 3d at 955, the spouse receivingmaintenance had lived with a third party for a year and a half. In In re Marriage of Toole, 273 Ill.App. 3d 607, 610 (1995), the recipient spouse had lived with a third party for about four years at thetime the petition to terminate maintenance was heard. In In re Marriage of Herrin, 262 Ill. App. 3d573, 574 (1994), the recipient spouse maintained a relationship for about 2