                                         2018 IL App (3d) 170289

                                 Opinion filed April 3, 2018
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                    2018

     In re MARRIAGE OF                      )     Appeal from the Circuit Court
                                            )     of the 12th Judicial Circuit,
     PASHA N. WALTHER,                      )     Will County, Illinois,
                                            )
           Petitioner-Appellant,            )
                                            )     Appeal No. 3-17-0289
           and                              )     Circuit No. 14-D-1294
                                            )
     LEILANI E. WALTHER,                    )     Honorable
                                            )     Kenneth L. Zelazo,
           Respondent-Appellee.             )     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. 

     _____________________________________________________________________________

                                                 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


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       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 with Christopher’s business

       or personal finances.


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¶ 12          According to Leilani, in 2016, she spent all the major holidays with Christopher,

       including Independence Day, Labor Day, Thanksgiving, and Christmas. However, Leilani denied

       living at Christopher’s house.

¶ 13          Leilani explained that when she signed the marital settlement agreement she did not have

       legal representation and did not understand that living with someone on a resident, continuing

       conjugal basis, resulted in a de facto husband and wife relationship that would terminate Pasha’s

       maintenance obligation. Leilani thought “living together was signing a lease together, getting a

       house together, not sleeping at somebody’s house. I had my place where I stayed.” Leilani

       acknowledged that “[f]or a small amount of time [she] did sleep at [Christopher’s] house.”

¶ 14          On February 4, 2016, Leilani posted on her Facebook page a photograph of Christopher,

       Ashley, Amber, and herself. The photograph shows Christopher with one arm around Leilani and

       his other arm around Ashley. In response to a friend’s comment, Leilani posted “[a]nd an

       awesome family. We are so happy.” Another of Leilani’s friends commented “this is a beautiful

       blended family.” Leilani responded “[w]e couldn’t be happier. Lots of laughs around here, not to

       mention [Ashley] got a sister she always wanted.”

¶ 15           In April 2016, Rhonda Sawyer, Christopher’s sister who also lived in Christopher’s

       house, told Leilani and Ashley to move out. Leilani was upset because her one-bedroom

       apartment did not have room for Ashley, and Ashley had developed a close relationship with

       Amber. Leilani said that her relationship with Christopher lasted for approximately 11 months.

¶ 16           On cross-examination, Leilani testified that she moved to Louisiana after the parties’

       divorce because she grew up in Gretna and felt that it was her home. In November 2014, after

       Leilani signed the lease for her apartment, Pasha came to Gretna to visit Leilani. Pasha stayed

       with Leilani in her apartment for approximately three days.


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¶ 17           In November 2015, Pasha gave Leilani one day notice that he was sending Ashley to

       Louisiana to live with Leilani. Leilani said Pasha knew her apartment had only one bedroom. As

       a result, Leilani arranged for Ashley to stay at Christopher’s house where Ashley could have a

       separate bedroom. After Ashley arrived in Louisiana, Leilani started looking for a two-bedroom

       apartment. In the five months that it took Leilani to locate a two-bedroom apartment, Ashley

       stayed at Christopher’s house.

¶ 18           Leilani said that she and Christopher had a “dating relationship.” During their

       relationship, Leilani maintained a separate checking account. Her checking account statements

       and utility bills were mailed to her apartment. Leilani used her apartment address on her driver’s

       license, vehicle registration, and Ashley’s school registration. Before Ashley moved to

       Louisiana, Leilani stayed at her apartment at times but “[n]ot a whole lot of times.” Leilani kept

       her apartment because she did not intend to stay in her relationship with Christopher for the long

       term. Leilani noted that she never told anyone that she “loved” Christopher or intended to marry

       him.

¶ 19           On redirect examination, Leilani testified that in April 2016, after Rhonda told her to

       move out of Christopher’s house, she sent a text message to Ashley that said “[d]on’t say

       anything to dad or Amber, please. Rhonda is kicking us out. So when you get home tomorrow,

       you need to pack your stuff.”

¶ 20           Pasha testified that he and Leilani were originally from Louisiana, but lived in Plainfield

       at the time of their divorce. In 2014, before Pasha filed for divorce, Leilani traveled to Gretna

       four times where she stayed with Christopher.

¶ 21           Following the divorce, Pasha had custody of Ashley. Pasha also mailed the maintenance

       checks to Leilani at 1615 Carol Sue Avenue, Gretna, Louisiana. Leilani never told Pasha that she


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       was living with Christopher or to mail the checks to Christopher’s address. In November 2015,

       Ashley moved to Louisiana. At the time, Leilani was living at Christopher’s house.

       Approximately six months later, Leilani and Ashley moved into a two-bedroom apartment.

¶ 22              In its ruling, the court said that it had heard the evidence, reviewed the documentary

       exhibits, and considered the supporting case law. The court found that it was required to consider

       the totality of the circumstances of the evidence presented to determine if there was a de facto

       husband and wife relationship. This included six nonexclusive factors: (1) the length of the

       relationship between the individuals alleged to be in a de facto husband and wife relationship,

       (2) the amount of time spent together, (3) the nature of the activities engaged in, (4) the

       interrelation of personal affairs, including finances, (5) whether they vacationed together, and

       (6) whether they spent holidays together. Specifically, the court said: “[w]hile evidence has been

       presented by the movant in the petition to terminate of numbers of these factors, I do believe,

       when looked at in the totality of the circumstances, I do not believe a de facto marriage has been

       put in place, and *** the petition to terminate maintenance is respectfully denied.” Pasha

       appeals.

¶ 23                                                ANALYSIS

¶ 24          Pasha argues the circuit court’s ruling was contrary to the manifest weight of the

       evidence because the record is replete with evidence that shows Leilani and Christopher

       cohabitated on a resident, continuing conjugal basis. Pasha contends the following facts establish

       that relationship: Leilani (1) had a conjugal relationship with Christopher at the time Pasha filed

       for divorce, (2) slept at Christopher’s residence on a daily basis from May to November 2015,

       (3) had free and unfettered access to Christopher’s house, (4) stored and washed her clothes at

       Christopher’s house, (5) purchased groceries for Christopher’s family, (6) cooked for


                                                          6

       Christopher’s family, (7) moved her daughter into Christopher’s house, (8) took overnight trips

       with Christopher, and (9) referred to a photograph of herself, Christopher, Amber, and Ashley as

       a “family.”

¶ 25          Section 510(c) of the Act states “the 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 2014). The payor spouse who seeks termination of

       their maintenance obligation has the burden of establishing that the receiving spouse is

       cohabiting with another. In re Marriage of Susan, 367 Ill. App. 3d 926, 929 (2006). To satisfy

       their burden, the payor spouse “must make a substantial showing that the former spouse is

       involved in a de facto husband and wife relationship with a third party.” In re Marriage of

       Thornton, 373 Ill. App. 3d 200, 208 (2007).

¶ 26          To determine whether the petitioner has satisfied their burden, a court examines the

       totality of the circumstances and considers the following nonexclusive factors: “(1) the length of

       the relationship; (2) the amount of time spent together; (3) the nature of activities engaged in;

       (4) the interrelation of personal affairs (including finances); (5) whether they vacation together;

       and (6) whether they spend holidays together.” In re Marriage of Miller, 2015 IL App (2d)

       140530, ¶ 40. Each termination case turns on its own facts, and “just as no two relationships are

       alike, no two cases are alike.” Id. On review, we will not disturb the circuit court’s finding of a

       de facto husband and wife relationship unless that finding is contrary to the manifest weight of

       the evidence. In re Marriage of Sunday, 354 Ill. App. 3d 184, 189 (2004). The circuit court’s

       finding is contrary to the manifest weight of the evidence where “the opposite conclusion is

       clearly evident or if the decision is unreasonable, arbitrary, or not based on the evidence.” Miller,




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       2015 IL App (2d) 140530, ¶ 40. We begin by analyzing the evidence relevant to each of the six

       factors.

¶ 27              First, we look at the evidence of the length of Leilani’s relationship with Christopher.

       Leilani testified that her relationship with Christopher lasted for approximately 11 months.

       However, this appears to be the period of the formal “relationship” as Leilani testified that she

       reconnected with Christopher in December 2013, started visiting and staying with Christopher in

       March 2014, stayed at Christopher’s house on a daily basis between May and November 2015,

       moved her daughter into Christopher’s house in November 2015, and was kicked out of the

       house in April 2016. Although Leilani testified that she stayed at Christopher’s house on a daily

       basis until November 2015, the record shows that she had not moved out on November 8, 2015,

       the date Ashley moved in, because Leilani testified that she shared a bedroom with Christopher

       at that time. Leilani’s testimony of the six month cohabitation period is further defeated by her

       April 2016 text message to Ashley that read “Rhonda is kicking us out.” Leilani’s use of a plural

       pronoun establishes that she too was living at Christopher’s house in April 2016. Therefore,

       Leilani’s relationship with Christopher lasted nearly two years and included nearly one year of

       cohabitation. These facts give the appearance of a de facto husband and wife relationship.

¶ 28              Second, we examine the evidence of the amount of time Leilani and Christopher spent

       together. The record indicates that Leilani spent a substantial amount of time with Christopher.

       Their time together began in 2014 when Leilani stayed with Christopher during her four visits to

       Louisiana. Then, in May 2015, Leilani slept at Christopher’s house “on a daily basis.” Leilani

       did not break down the number of hours per day that she spent with Christopher, however, her

       testimony that she prepared meals at Christopher’s house, shared a bedroom with Christopher,




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       and assisted in cashing checks for Christopher’s business creates the reasonable inference that

       Leilani spent a substantial portion of each day with Christopher.

¶ 29             Third, we consider the nature of the activities that Leilani and Christopher engaged in.

       Leilani testified that she had a monogamous sexual relationship with Christopher and shared a

       bedroom with Christopher. Leilani and Christopher also attended concerts together in Biloxi.

       Some of these trips included overnight stays. Leilani helped Christopher by cashing checks for

       his business, washing his laundry, purchasing groceries, and preparing meals for his household.

       Although Leilani did not have a key to Christopher’s house, she had unfettered access. These

       activities give the appearance of a de facto husband and wife relationship. This appearance is

       furthered by Leilani’s February 2016 post on Facebook. At that time, Leilani posted a

       photograph of Christopher and herself standing arm-in-arm with their daughters. In response to

       some friends’ comments, Leilani described the group as a “family” and mentioned that her

       daughter “got a sister she always wanted.” Leilani also commented “[w]e couldn’t be happier.

       Lots of laughs around here.” The photograph and comments confirmed that Leilani had formed a

       familial relationship with Christopher and his daughter and the group engaged in activities as a

       family.

¶ 30             Fourth, we review the evidence related to the interrelation of Leilani and Christopher’s

       personal affairs, including finances. As indicated by our discussion of the third factor, Leilani

       had intermingled many aspects of her life with Christopher’s life, including sharing a bedroom

       with Christopher, arranging for their children to live in the same bedroom, assisting with

       household chores, and referring to herself, Christopher, Ashley, and Amber as a family. Supra

       ¶ 29. The evidence establishes that the only aspects of Leilani’s personal affairs that were not

       interrelated with Christopher were Leilani’s finances, driver’s license, vehicle registration, and


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       Ashley’s school registration. Thus, Leilani had interrelated much of her personal affairs with

       Christopher’s.

¶ 31          We next examine the fifth factor, whether Leilani and Christopher vacationed together.

       As discussed in relation to the couple’s activities, Leilani and Christopher traveled together to

       Biloxi to attend concerts. Supra ¶ 29. Although these were not lengthy trips, Christopher and

       Leilani occasionally spent the night in Biloxi. Leilani’s testimony that she and Christopher split

       the costs of the trips slightly decreases the appearance of a trip taken by a de facto marital

       couple, but it does not discredit the fact that they vacationed together as a couple. Therefore,

       these trips are vacations that evidence a de facto husband and wife relationship.

¶ 32          Finally, we review the evidence of the sixth factor, whether the couple spent holidays

       together. Leilani testified that she spent all of the major holidays with Christopher in 2016.

       However, this testimony conflicts with Leilani’s statement that she and Ashley were kicked out

       of the house in April 2016 and her relationship with Christopher ended. After reviewing the

       record in toto, we find that Leilani’s testimony indicated that she spent all major holidays with

       Christopher in 2015. This inference is validated by Leilani’s testimony that she slept at

       Christopher’s house “on a daily basis” from May to November 2015 and her text message to

       Ashley that established that she was still living at Christopher’s house in April 2016. Leilani’s

       May 2015 to April 2016 period of cohabitation with Christopher included the following

       holidays: Independence Day, Labor Day, Thanksgiving, and Christmas. Therefore, evidence of

       this factor furthers the appearance of a de facto husband and wife relationship.

¶ 33          After reviewing the totality of the circumstances and considering the six factors, we

       conclude that the vast majority of the evidence clearly establishes that Leilani cohabited with

       Christopher on a resident, continuing conjugal basis. 750 ILCS 5/510(c) (West 2014). Moreover,


                                                        10 

       the mere fact that Leilani’s relationship with Christopher appears to end around the time that

       Pasha filed his petition to terminate maintenance does not refute the evidence that clearly shows

       that Leilani cohabitated with Christopher on a resident, continuing conjugal basis. Therefore,

       Pasha satisfied his burden of proof, and the circuit court’s denial of the petition to terminate

       maintenance was contrary to the manifest weight of the evidence.

¶ 34                                             CONCLUSION

¶ 35          The judgment of the circuit court of Will County denying the petition to terminate

       maintenance is reversed. The cause is remanded with directions for the circuit court to determine

       the date at which Pasha’s maintenance obligation terminated and to order a refund of any

       maintenance paid after that date.

¶ 36          Reversed and remanded with directions.

¶ 37          PRESIDING JUSTICE CARTER, dissenting:

¶ 38          I respectfully dissent from the majority’s opinion in the present case. I would affirm the

       circuit court’s judgment and hold Leilani and Christopher did not cohabitate on a continuing

       conjugal basis and the denial of Pasha’s petition to terminate maintenance was not contrary to

       the manifest weight of the evidence.

¶ 39          I agree with the majority that our evaluation of the circuit court’s denial of Pasha’s

       petition to terminate maintenance is reviewed under the manifest weight of the evidence

       standard. However, in applying this standard, I would afford greater deference to the circuit

       court’s fact and credibility findings. This level of deference is necessary “to preserve the primacy

       of the trial court’s position in finding those unique facts *** concerning the existence of a

       de facto husband-wife relationship.” Sunday, 354 Ill. App. 3d at 189. After all, the decision to

       grant a petition to terminate maintenance is highly fact-dependent, and the circuit court is in a far


                                                        11 

       superior position to weigh the credibility of the witnesses who testify before it and make fact-

       based determinations. In re Marriage of Snow, 322 Ill. App. 3d 953, 956 (2001).

¶ 40          The analysis of the majority tends to lose sight of the rationale behind terminating the

       payor spouse’s maintenance obligation: the prevention of “the inequity created when the ex-

       spouse receiving maintenance becomes involved in a husband-and-wife relationship but does not

       legally formalize it.” In re Marriage of Herrin, 262 Ill. App. 3d 573, 577 (1994). Pasha’s

       evidence fails to support this presumption as Leilani’s unrebutted testimony indicated that she

       never intended for her relationship with Christopher to be permanent or lead to marriage.

       Leilani’s position is supported by the evidence that she maintained a separate apartment,

       occasionally lived at that apartment, did not commingle her finances with Christopher’s, and did

       not have a key to Christopher’s house. While this evidence could be viewed as a ruse to conceal

       a more permanent relationship, this would require fact and credibility determinations that must

       be made by the circuit court in its role as fact finder. Additionally, this evidence does not directly

       implicate the six factors reviewed by the majority, but those factors are “nonexclusive” and this

       evidence broadly supports the circuit court’s finding that Leilani and Christopher’s relationship

       was not a substitute for marriage. Moreover, I would find contrary to the majority’s position that

       the evidence regarding the six factors does not show the existence of a de facto husband and wife

       relationship.

¶ 41          First, Leilani’s testimony directly established that her relationship with Christopher lasted

       for 11 months. The majority contends that despite Leilani’s direct testimony as to the length of

       her relationship with Christopher, the relationship was closer to two years. Supra ¶ 27. This

       conflict in Leilani’s testimony presented a question of fact or a credibility determination for the

       circuit court to decide. The court’s ruling indicates that it found the relationship to be of a shorter


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       term. I note that an 11-month relationship is shorter than many of the cases where courts have

       found a resident, continuing conjugal relationship. In Snow, a case relied on by Pasha, the spouse

       receiving maintenance payments lived with her boyfriend for approximately 18 months. Snow,

       322 Ill. App. 3d at 955. Similarly, in Herrin, the maintenance receiving spouse testified that, at

       the time of the hearing, she had been in a monogamous sexual relationship with the same third

       party for 2½ years. Herrin, 262 Ill. App. 3d at 574-75. In both of these cases, the alleged

       resident, continuing conjugal relationship lasted for more than one year and was longer than

       Leilani’s 11-month relationship with Christopher. The length of Leilani’s relationship carries

       significant weight because it serves as a proxy to determine whether the new relationship was a

       substitute for the marital relationship. Sunday, 354 Ill. App. 3d at 189-90. Leilani’s 11-month

       relationship with Christopher plus her stated intent that the relationship not be permanent show

       that this relationship was not a substitute for marriage.

¶ 42          Second, Pasha presented scant evidence of the amount of time that Leilani spent with

       Christopher during their relationship. At most, the record affirmatively shows Leilani and

       Christopher lived together on a daily basis between May and November 2015, but it does not

       detail the amount of time they spent together during this period. The majority’s conclusion that

       the evidence indicates that Leilani and Christopher spent a substantial portion of each day

       together is undermined by evidence that Christopher operated a business outside of the home.

       This left less time for he and Leilani to spend together, even during the period that they

       cohabitated.

¶ 43          Third, little evidence was presented regarding the nature of the activities that Leilani and

       Christopher engaged in. At best, the record shows that the couple attended a few concerts in

       Biloxi, shared some meals, and had sexual intercourse. Apart from this, the record is unclear as


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       to the parties’ daily activities. Contrary to the majority’s finding, the record did not show that

       Leilani and Christopher together engaged in the household chores like washing laundry and

       preparing meals.

¶ 44             Fourth, Leilani’s testimony established that she did not share financial accounts or

       information with Christopher, and she had her government registration documents sent to her

       personal apartment. The record shows that, at most, Leilani assisted Christopher’s business by

       cashing checks using her personal account and then giving the cash to Christopher, but she knew

       nothing about his overall finances. Moreover, Leilani testified that her bank statements were

       mailed to the address of her apartment, which indicated that Christopher had limited knowledge

       of Leilani’s financial information.

¶ 45             Fifth, Leilani’s testimony established that she and Christopher did not take lengthy

       vacations together, but they occasionally spent the night in Biloxi. The record is unclear as to the

       number of trips Leilani and Christopher took together, and consistent with their separate finances

       and uncharacteristic for de facto married couple, Leilani and Christopher split the costs of these

       trips.

¶ 46             Finally, Leilani testified that she spent all of the major holidays with Christopher in 2016.

       This statement tends to contradict Leilani’s testimony that her relationship lasted approximately

       11 months and Rhonda kicked her out of the house in April 2016 as the majority of these

       holidays occurred after this date. Potentially, as the majority notes, Leilani misstated the year of

       the holidays. However, this presented a question of fact or credibility for the circuit court to

       decide.

¶ 47             Considering the totality of the circumstances, I would find that the evidence of each of

       these factors establishes that Leilani and Christopher’s relationship either did not attain a level of


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permanence sufficient for the court to find that it was a substitute for marriage or implicates a

credibility determination or question of fact for the circuit court to decide. As a court of review, I

would defer to the circuit court’s fact and credibility determinations and find them to be readily

supported by the record. Overall, I would affirm the circuit court’s ruling and hold its denial of

Pasha’s petition to terminate maintenance was not contrary to the manifest weight of the

evidence.




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