June 14, 2001

A.D., 2001

JUSTICE SLATER delivered the opinion of the court:

The petitioner, Dawn A. Snow, appeals from the order of thecircuit court of Will County terminating her right to receivemaintenance from the respondent, William A. Snow. On appeal,Dawn contends that the trial court erred in finding that sheengaged in a continuing, conjugal relationship with another man. On cross-appeal, William argues that the trial court erred interminating maintenance from the date of his petition rather thanthe date the cohabitation began. For the following reasons, weaffirm the trial court's order granting William's petition. However, we remand this cause for the trial court to determinewhen Dawn began the cohabitation and to terminate her payments asof that date.

The record reflects that the Judgment of Dissolution wasentered on February 27, 1998. In the Judgment, William wasordered to pay $1,800.00 per month in maintenance to Dawn untilMay 31, 1999. Thereafter, a reduced amount of maintenance was tobe paid pursuant to a schedule set forth in the maritalsettlement agreement. The terms of the marital settlementagreement, which were incorporated into the Judgment ofDissolution, also stated that "maintenance shall terminate afterthe above payments have been made or earlier upon order ofcourt."

On May 14, 1999, William filed a petition to terminatemaintenance. In the petition, William alleged that Dawn had beenengaged in a continuing conjugal relationship with Jaime Littrellbetween August 1997 and February 1999.

At the hearing on the petition, Jaime Littrell testifiedthat sometime in 1997 he was living with his mother who waspreparing to move out of state. At that time, Dawn invited himto move into her home. Jaime moved into Dawn's son's old room.

Jaime testified that when he moved into her home, Dawn toldhim that he did not need to initially pay rent because herhusband was paying the mortgage. However, she said that in March1998 he would have to pay her $300 per month. Jaime said thatthey had an agreement to split the cost of utilities andgroceries. He also maintained the lawn and the pool.

According to Jaime, in March 1998 he began paying rent. Hepaid the rent in cash because he had no checking account. Hesaid Dawn gave him receipts for the payments, but he was unableto produce any receipts at the hearing.

Jaime also testified that he and Dawn had sexual relationsthree to four times a week during the year and a half that theylived together. Further, he admitted that on one occasion hesecretly videotaped them having sexual relations without Dawn'sconsent. He described their relationship during that time as"sex partners."

Dawn testified that Jaime lived in her home for a year and ahalf. She said that she allowed Jaime to live in her homebecause he had no place to live after his mother moved out ofstate. According to Dawn, she only offered him one of herbedrooms until he got himself "up on his feet." During thattime, he never paid her any rent or contributed toward hermortgage payments. She said Jaime paid for his own groceries andtelephone charges but sometimes he would give her money for food,gas, and chemicals for the pool. She also said Jaime did someyard work and work around the pool.

Dawn admitted that while they lived together, she and Jaimesocialized about two to three times a month for dinner, a movie,or drinks. They sometimes went out with her friends, but neverwith his. They exchanged Christmas and birthday presents.

Dawn denied any sexual relationship with Jaime. However,she admitted that they had sexual relations in January 1999 afterthey had been out together and she had had too much to drink. Finally, Dawn noted that during the time Jaime resided in herhome he never paid for any of her personal expenses, they did notco-mingle their funds, and they owned no joint credit cards.

After hearing all the evidence, the trial court found thatJaime's testimony was more credible than Dawn's. Therefore, itfound that William established that Dawn engaged in a continuingconjugal relationship with Jaime within the meaning of thestatute. Accordingly, it terminated William's maintenanceobligation from the date he filed his petition and ordered Dawnto reimburse William for the overpayment.

On appeal, Dawn argues that the trial court erred interminating her maintenance because William failed to prove thatshe and Jaime engaged in a continuing, conjugal relationship.

Illinois law provides for termination of maintenance whenthere is a resident, continuing, conjugal relationship betweenthe maintenance recipient and a third party. 750 ILCS 5/510(c)(West 1998). To prove a continuing, conjugal relationship, anex-spouse must show that the former spouse is involved in a defacto husband and wife relationship. In re Marriage of Leming,227 Ill. App. 3d 154, 590 N.E.2d 1027 (1992). To determine ifsuch a relationship exists, courts have examined the followingfactors: (1) the length of the relationship; (2) the amount oftime the couple spends together; (3) the nature of activitiesengaged in; (4) the interrelation of their personal affairs; (5)whether they vacation together; and (6) whether they spendholidays together. In re the Marriage of Herrin, 262 Ill. App.3d 573, 634 N.E.2d 1168 (1994). A reviewing court gives greatdeference to the trial court's factual findings because the trialcourt stands in the best position to weigh the credibility of allthe witnesses. In re Jones, 285 Ill. App. 3d 8, 673 N.E.2d 703(1996). Finally, a court of review will not reverse a trialcourt's finding concerning the existence of a de factorelationship unless that finding is contrary to the manifestweight of the evidence. In re Marriage of Caradonna, 197 Ill.App. 3d 155, 553 N.E.2d 1161 (1990).

Here, Dawn and Jaime lived together for a year and a half. They socialized together frequently and engaged in such datingactivities as dinners, movies, and drinks. Although Dawntestified that they did not have a sexual relationship, we deferto the trial court's finding that Jaime's account of their sexualrelationship was more credible. They exchanged Christmas andbirthday presents. They split household chores, and theysocialized with Dawn's friends. Based upon the totality of thecircumstances, we find that the trial court's finding of a defacto husband-wife relationship between Dawn and Jaime was notagainst the manifest weight of the evidence. Therefore, we holdthat the trial court properly found a continual, conjugalrelationship between Dawn and Jaime and granted William'spetition to terminate maintenance.

On cross-appeal, William argues that the trial court erredin terminating maintenance from the date of his petition ratherthan the date the cohabitation began. In support of hiscontention, he cites to In re Marriage of Gray, 314 Ill. App. 3d249, 731 N.E.2d 942 (2000). In Gray, the appellate court heldthat the triggering period for termination of maintenance is thetime the conjugal cohabitation began and not when the petition toterminate maintenance is filed. Gray, 314 Ill. App. 3d at 253,731 N.E.2d at 946 (2000). In response, Dawn argues that theterms of the settlement agreement that "maintenance shallterminate after the above payments have been made or earlier uponorder of the court" is a separate agreement between the partiesthat precludes application of the "conjugal cohabitation" sectionof the Marriage and Dissolution of Marriage Act (Act). In thealternative, Dawn contends that the Gray case fails to followwell settled Illinois law.

Section 510(c) of the (Act) provides as follows:

"Unless otherwise agreed by the partiesin a written agreement set forth in thejudgment or otherwise approved by the court,the obligation to pay future maintenance isterminated upon the death of either party, orthe remarriage of the party receivingmaintenance, or if the party receivingmaintenance cohabits with another person on aresident, continuing conjugal basis." 750ILCS 5/510(c) (West 1998).

We reject Dawn's argument that the terms of the settlementagreement constitute a separate agreement which only allowsmaintenance to be terminated upon completion of payment or theentry of a court order. We do not read that section as limitingthe termination of maintenance to only those two instances. Therefore, we find that the "conjugal cohabitation" section ofthe Act applies in this case. Further, we agree with In reMarriage of Gray that the triggering period for termination ofmaintenance is the time the conjugal cohabitation began and notwhen the petition to terminate maintenance is filed. Gray, 314Ill. App. 3d at 253, 731 N.E.2d at 946 (2000). Therefore, wehold that the trial court erred in terminating William'smaintenance obligations from the time he filed his petition. Accordingly, we remand this cause for the trial court todetermine when Dawn began the cohabitation and to terminate herpayments as of that date.

The judgment of the circuit court of Will County is affirmedin part and remanded in part.

Affirmed in part; remanded in part.

BRESLIN and McDADE, J.J., concur.