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                                                                                 Date: 2019.07.02
                                     Appellate Court                             11:04:54 -05'00'




                  In re Marriage of Churchill, 2019 IL App (3d) 180208



Appellate Court         In re MARRIAGE OF AMY B. CHURCHILL, Petitioner-Appellee,
Caption                 and JOHN CHURCHILL, Respondent-Appellant.



District & No.          Third District
                        Docket No. 3-18-0208



Filed                   April 29, 2019



Decision Under          Appeal from the Circuit Court of Tazewell County, No. 16-D-397; the
Review                  Hon. Timothy J. Cusack, Judge, presiding.



Judgment                Affirmed.


Counsel on              Mitch M. Gilfillan, of Quinn, Johnston, Henderson, Pretorius &
Appeal                  Cerulo, of Peoria, for appellant.

                        Brian J. Seckler, of Parker & Parker, of Peoria, for appellee.



Panel                   JUSTICE O’BRIEN delivered the judgment of the court, with
                        opinion.
                        Justices Carter and McDade concurred in the judgment and opinion.
                                             OPINION

¶1      Respondent John Churchill filed a petition to terminate maintenance he was obligated to
     pay to his former spouse, petitioner Amy Churchill, alleging that she was cohabitating with
     another man. The trial court denied John’s petition. He appealed the ruling as well as the trial
     court’s award of permanent maintenance to Amy. We affirm.

¶2                                              FACTS
¶3       Petitioner Amy Churchill and respondent John Churchill were married on March 27,
     1999, and had two children, born September 7, 1999, and October 18, 2002. Amy filed a
     petition for dissolution of the marriage and for an order of protection on September 27, 2016.
     The trial court granted Amy temporary relief in February 2017, awarding her temporary
     monthly child support of $6040 and maintenance of $5000 and entering an order of
     protection. The court appointed a guardian ad litem (GAL) to represent the children.
¶4       John filed a petition to terminate temporary maintenance in October 2017, alleging Amy
     was cohabitating with her boyfriend, Jared Fogle. In December 2017, a trial took place on
     John’s petition to terminate maintenance at which the following witnesses and evidence were
     presented. Amy testified she had been a homemaker throughout the marriage because John
     wanted her to stay at home. She had a part-time temporary job for several years at which she
     earned $8.59 per hour. She quit the job because she and John were building a house. At the
     time of trial, she had not worked for four years. She had a high school diploma and two years
     post-high school classes. She met her boyfriend, Jared, in November 2016. She had planned
     to see him with a group of friends on New Year’s Eve 2016 but cancelled because of illness.
     Jared visited her when she was hospitalized in January 2017. They went on their first date on
     Valentine’s Day 2017, and had engaged in sexual intercourse since February 2017. Amy
     estimated Jared spent the night at her house approximately seven times between February
     and April 2017, with the longest period being Friday through Sunday. Jared kept a sweatshirt
     and a pair of slides at the marital house on Tara Trace and slides at her rental place on North
     Morton Avenue. He helped move her outdoor furniture from the house on Tara Trace to the
     North Morton Avenue house, but she hired movers for the majority of her items.
¶5       Amy spent a lot of time with Jared, including going to the movies once and bowling
     several times with her children. She and Jared also went to the casino a few times. Jared
     helped her son with his Spanish homework because Jared spoke the language. Jared also
     came to her sons’ sporting events. He used the grill at her house at her request on two
     occasions and took out the trash twice. He mowed the lawn and edged once when there was a
     showing scheduled. Jared washed his clothes at her house from time to time and put up a
     shelf for her son, but he did not assist her with household chores. She accepted packages for
     him delivered to her house, including several addressed to Amy Fogle. Amy explained that
     Jared used Amy Fogle as a code so she would know to wait to open the package until he was
     with her. She vacationed to Las Vegas with Jared to celebrate his birthday. She paid her share
     of the trip. They also traveled to Macomb for family gatherings. She bought Jared a ring
     when his grandfather died, but he was uncomfortable with it because of its symbolism. She
     and Jared had not discussed marriage, and she stated that Jared may not be in her life forever.
     Amy acknowledged Jared would likely move back to Texas and their relationship would end.
     She was not interested in marrying again.

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¶6         Jared testified that he co-owned and operated a hail damage repair business with his
       brother. The work required him to move from place to place. He worked in Morton from
       November 2016 to April 2017. Jared moved the business to Canton in April 2017, staying
       there until June 2017, when he moved the business to Iowa. In October 2017, he moved the
       business to Missouri. His permanent home address was in Texas. His time in Morton was
       always meant to be temporary. While working in Morton, Jared set up an office and
       converted a room there into living quarters. Amy would visit him there for lunch on
       occasion. Although he spent a few nights at Amy’s house, he stayed primarily at his
       converted living space. He parked his truck in the garage at the Tara Trace house three or
       four times when the weather was bad. After Amy moved to North Morton Avenue, he stayed
       there two or three nights each month. He never had a key to either residence. He did not keep
       a toothbrush at Amy’s house. He had items delivered to Amy’s house because he did not
       want them left unattended at the business.
¶7         John testified as to Amy’s spending habits during the marriage and after their separation
       and divorce. It was his understanding from a phone call he overheard between one of his sons
       and Amy that she was dating Jared at Christmastime 2016.
¶8         The GAL testified that the children told her Jared did not live with them but spent four
       days at their house approximately every other weekend. Jared was treated as a guest. One son
       found the idea of his mother marrying Jared humorous and said his relationship with his
       girlfriend was more serious than Amy and Jared’s relationship. He called the ring Jared gave
       Amy a mother’s ring and not a promise ring. Both children thought John was trying to trap
       Amy.
¶9         A sales associate from Rogers and Holland testified that Jared and Amy were authorized
       users on each other’s account, which was done for convenience. Jared used Amy’s address
       for a ring he bought her. The ring was described as a double-heart alexandrite ring with
       birthstones. Amy bought Jared a ring that was a wedding band. The men’s wedding rings
       were less flashy than the regular men’s rings, which included diamonds and other decorations
       on them.
¶ 10       A private investigator hired by John testified that he began investigating Amy in
       February 2017 to determine John’s claims of cohabitation. He conducted surveillance of
       Amy’s house and Jared’s business. He could not say that Jared ever spent the night at Amy’s
       house. After the petition to terminate was filed, Amy’s Facebook page was made private, and
       he could no longer access it. He had used Facebook to find a lot of pictures documenting her
       relationship with Jared, which were used as exhibits at trial. His investigation continued until
       October 2017.
¶ 11       An employee of John who passed the marital house on her way to work testified that she
       had seen a black truck at the house between 7:30 a.m. and 8 a.m. in October 2016 but could
       not identify it as Jared’s truck.
¶ 12       Amy’s father testified that he spent time at Amy’s house in the fall of 2016 and
       occasionally spent the night. He drove a black Yukon.
¶ 13       Following the trial, the court entered a bifurcated judgment of dissolution on December
       14, 2017. The court entered an order incorporating the parties’ marital settlement agreement
       in January 2018, which resolved all issues except maintenance, child support, and uncovered
       medical expenses. In April 2018, the trial court entered an order denying John’s petition to
       terminate maintenance. In doing so, the court made specific findings regarding the factors

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       concerning cohabitation that indicated Amy and Jared were not in a resident, continuing
       conjugal relationship. The trial court also made specific findings regarding the statutory
       maintenance factors and awarded Amy permanent maintenance in the amount of $10,000 per
       month. John appealed.

¶ 14                                            ANALYSIS
¶ 15        John presents two issues on appeal: whether the trial court erred in denying his petition to
       terminate maintenance and in awarding permanent maintenance.
¶ 16        We start with John’s challenge to the trial court’s denial of his petition to terminate
       maintenance. John argues that he established that Amy was cohabitating with Jared,
       necessitating the termination of maintenance, and that the trial court should have granted his
       petition.
¶ 17        A former spouse’s obligation to pay maintenance will terminate when the former spouse
       “cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 5/510(c)
       (West 2016). The court considers the following nonexhaustive factors to determine whether a
       party is engaged in a de facto marriage: (1) the length of the relationship, (2) the amount of
       time the former spouse and new partner spend together, (3) the nature of the activities in
       which they participate, (4) the interrelation of their personal affairs, and whether they
       (5) vacation and (6) spend holidays together. In re Marriage of Herrin, 262 Ill. App. 3d 573,
       577 (1994). Other factors include the effect the relationship has on the recipient former
       spouse’s financial need for maintenance and the intended permanence or mutual commitment
       to the relationship. In re Marriage of Bramson, 83 Ill. App. 3d 657, 663 (1980); In re
       Marriage of Miller, 2015 IL App (2d) 140530, ¶ 48. As opposed to an intimate dating
       relationship, a de facto marriage involves a deeper commitment, permanence and partnership.
       Miller, 2015 IL App (2d) 140530, ¶ 51. The spouse seeking termination of maintenance bears
       the burden of establishing a de facto marriage relationship. In re Marriage of Thornton, 373
       Ill. App. 3d 200, 208 (2007). A reviewing court will not reverse a trial court’s finding that a
       de facto marriage exists unless the finding is against the manifest weight of the evidence.
       In re Marriage of Toole, 273 Ill. App. 3d 607, 611-12 (1995). We will not reverse an order
       terminating maintenance unless it was an abuse of discretion. In re Marriage of Bernay, 2017
       IL App (2d) 160583, ¶ 13.
¶ 18        The trial court found that (1) Amy and Jared had been in a relationship between 8 and 12
       months; they met after Jared moved to the area in November 2016 and began dating in
       February 2017; (2) John’s private investigator could not find definitive evidence that Jared
       stayed at Amy’s house for a 37-week period from February 2017 to November 2017,
       although Amy admitted Jared stayed occasionally during that period; Jared kept separate
       living quarters with his brother at their commercial business; Jared did not change his address
       to Amy’s house or move in any furniture or personal belongings; (3) Amy and Jared spent
       significant time together as typical of a new relationship; (4) the relationship was sexual;
       (5) Jared did not share in Amy’s household chores, although he assisted her on a couple of
       occasions; (6) Amy and Jared did not have any joint accounts or commingle their finances;
       (7) they did not own any joint property; (8) they each paid their own expenses; (9) neither
       provided for each other in their wills or estate planning; (10) Amy and Jared vacationed and
       spent holidays together, which was reflective of the initial bloom of the relationship but did
       not translate into a de facto marriage; (11) Jared exchanged gifts with Amy and her sons,

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       which was normal dating behavior. The court also rejected John’s claims that the rings Amy
       and Jared bought each other were engagement rings, finding the characterization of the rings
       was disputed and there was no other evidence of an engagement; and (12) Amy
       acknowledged the parties discussed marriage, said she was not interested in remarrying, and
       told Jared the same; he said they talked about moving to Texas but did not pursue the plan.
¶ 19       The findings made by the trial court establish that Amy and Jared were involved in an
       intimate dating relationship and that it lacked the permanence of a de facto marriage. Nothing
       John argues changes that result. John’s reliance on In re Marriage of Walther, 2018 IL App
       (3d) 170289, In re Marriage of Snow, 322 Ill. App. 3d 953 (2001), and In re Marriage of
       Sappington, 106 Ill. 2d 456 (1985), is misplaced. In those cases, there was evidence the
       ex-spouse and the new partner lived together. In Snow, this court found termination of
       maintenance was appropriate where the ex-spouse’s boyfriend moved into her house and
       lived there for a year and a half. Snow, 322 Ill. App. 3d at 955. In Sappington, the ex-spouse
       and her boyfriend lived together in the marital home for more than two years. Sappington,
       106 Ill. 2d at 459-60.
¶ 20       In Walther, this court determined the former wife was cohabitating on a resident,
       continuing conjugal basis and granted the former husband’s petition to terminate
       maintenance. Walther, 2018 IL App (3d) 170289, ¶ 33. The Walther facts established that the
       former wife slept at her boyfriend’s house every night for nearly a year. Id. ¶ 27. The former
       wife’s daughter also lived at the boyfriend’s house, sharing a room with his daughter. Id.
       ¶ 30. The former wife stored her clothes at the boyfriend’s house, bought groceries and
       cooked for her boyfriend’s family, traveled with her boyfriend, and referred to a picture of
       her, him, and each of their daughters as a family. Id. ¶ 24. The former wife maintained a
       one-bedroom apartment in her own name, which was sparsely furnished. Id. ¶ 7. She used the
       apartment address as her official address, with her bank statements and utility bills mailed
       there. Id. ¶ 18. She also used the address for her driver’s license, vehicle registration, and her
       daughter’s school registration. Id.
¶ 21       The circumstances in Walther differ substantially from the instant case. Amy and Jared
       met when he was in the area working and began dating. In contrast, in Walther, the former
       wife had reconnected with a childhood friend after she and her husband separated and she
       eventually moved back to her hometown, where her friend still lived. Id. ¶¶ 5-7. Although
       she rented an apartment, the former wife admitted she spent every night at her friend’s house.
       Id. ¶ 27. Here, there was no evidence Jared lived with Amy. He did not store clothes at
       Amy’s house other than a sweatshirt and pair of shoes and did not move in any of his
       personal belongings. John’s investigator was not able to discover that Jared spent the night at
       Amy’s house at all during a seven-month period of surveillance, although Jared and Amy
       acknowledged that he spent some nights at her house, estimating several per month. Amy’s
       sons told the GAL that Jared did not live with them but often spent every other weekend
       there. At most, Jared stayed with Amy for a long weekend. The nature of Jared’s business
       was such that he moved around to where the work was located. After he met Amy and
       worked in the Morton area, he moved the business to Canton, then to Missouri. Jared lived
       with his brother at their business locations while in Illinois. He maintained his permanent
       home in Texas.
¶ 22       Amy and Jared did not share finances or commingle the daily aspects of their lives. Jared
       participated in some activities with Amy’s children but did not assume a role as a father.

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       Unlike the wife in Walther, he did not participate in the day-to-day living activities of Amy’s
       household. Jared did not cook, clean, or buy groceries for Amy and her children and Amy did
       not do Jared’s laundry, buy his groceries, or prepare his meals. See id. ¶ 29. He did not have
       a key or unfettered access to either of Amy’s houses. See id. Jared and Amy spent significant
       amounts of time together at the beginning of their relationship as was typical but neither of
       them anticipated a future together or indicated the relationship was permanent. Moreover, as
       Jared moved out of the area for work, it followed that their day-to-day involvement
       decreased. Amy’s son considered his high school relationship with his girlfriend more
       serious than his mother and Jared’s relationship.
¶ 23       Based on the evidence presented, John failed to establish that Amy was engaged in a
       resident, continuing conjugal relationship with Jared. His involvement in Amy’s life and with
       her children reflected an intimate dating relationship but did not rise to the level of a de facto
       marriage. We find the trial court did not err when it denied John’s petition to terminate
       maintenance.
¶ 24       The second issue is whether the trial court erred when it made the maintenance award
       permanent. John does not challenge that Amy was entitled to maintenance but argues it
       should be limited to 14 years as set forth in the maintenance guidelines and the award as
       permanent was not warranted. John filed his petition to terminate maintenance based on the
       award of temporary maintenance prior to the court’s determination of maintenance in the
       judgment of dissolution.
¶ 25       The guidelines provide that for parties with a combined income of less than $500,000, the
       duration of maintenance is to be determined according to a formula based on the length of the
       marriage. 750 ILCS 5/504(b-1)(1)(B) (West Supp. 2017). For maintenance that does not fall
       under the guidelines, the court must consider the statutory factors. Id. § 504(b-1)(2). These
       factors include (1) the parties’ income and property; (2) their needs; (3) each party’s realistic
       earning potential, both current and future; (4) impairment to the earning potential of the party
       seeking maintenance as a result of staying home to raise the children or run the household;
       (5) any impairment to the earning potential of the spouse from whom maintenance is sought;
       (6) the amount of time necessary for the recipient spouse to acquire appropriate training and
       education to support herself and whether she can support herself; (7) the parties’ standard of
       living established in the marriage; (8) the marriage’s duration; (9) “the age, health, station,
       occupation, amount and sources of income, vocational skills, employability, estate, liabilities,
       and the needs of each of the parties”; (10) all sources of income; (11) tax consequences from
       the property division on the parties’ economic circumstances; (12) contribution by the spouse
       seeking maintenance to the other spouse’s education, training, career or career potential, or
       license; (13) any valid agreement of the parties; and (14) any other factor found to be just and
       equitable. Id. § 504(a)(1)-(14).
¶ 26       Permanent maintenance is appropriate where the spouse receiving it is not employable at
       a level to allow her to live at the standard of living established during the marriage or is not
       employable at all. In re Marriage of Harms, 2018 IL App (5th) 160472, ¶ 45. Permanent
       maintenance may be warranted in a lengthy marriage where the recipient spouse devoted his
       or her time to raise the children. In re Marriage of Culp, 341 Ill. App. 3d 390, 398 (2003).
       This court reviews a trial court’s decision to award permanent maintenance for an abuse of
       discretion. In re Marriage of Dunseth, 260 Ill. App. 3d 816, 833 (1994).


                                                   -6-
¶ 27       The statutory maintenance guidelines do not apply here where John’s income was greater
       than $500,000 per year. The court set forth the statutory factors justifying maintenance,
       which reflected the need for the award to be permanent. At the time of the dissolution, Amy
       was 49 years old, with a high school diploma and some college coursework. She had not
       worked outside the home throughout the marriage except for a 10-hour per week,
       hourly-wage position that she held for several years. In contrast, during the marriage “John
       cultivated his business.” He enjoyed a brighter financial future, with past earnings over
       $500,000 annually from a business he owned and grew with Amy’s assistance at home. The
       court noted the parties’ “lavish standard of living” and personal property in excess of $1.4
       million. The marriage was just over 17 years when Amy filed for dissolution. The parties’
       property division was equal with Amy receiving non-liquid assets while John retained his
       earning capability through the business in addition to the non-liquid assets he was awarded.
       Both parties listed monthly expenses that exceeded their income but John had a regular and
       ongoing opportunity to earn income while Amy’s prospects were limited and would not
       amount to wages sufficient to maintain her lifestyle as established during the marriage. We
       find the trial court’s award of permanent maintenance in the amount of $10,000 per month
       was not an abuse of discretion.

¶ 28                                      CONCLUSION
¶ 29       For the foregoing reasons, the judgment of the circuit court of Tazewell County is
       affirmed.

¶ 30      Affirmed.




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