In re Marriage of Thornton

SUPREME COURT CASES

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State: Illinois

Court: 3rd District Appellate

Docket No: 3-05-0722 Rel

Case Date: 04/17/2007

Preview:No. 3--05-0722 Filed April 17, 2007. IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2007 ______________________________________________________________________________ In re MARRIAGE OF WADE S. THORNTON, Petitioner-Appellee, and ROSIEMARY THORNTON, Respondent-Appellant. ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois,

No. 99--D--375

Honorable Stephen Kouri, Judge, Presiding.

JUSTICE McDADE delivered the opinion of the court:

The respondent, Rosiemary Thornton, has appealed the order of the circuit court of Peoria County granting the oral request of her former spouse, Wade S. Thornton, to terminate his obligation to make maintenance payments to her. Respondent also asks this court to change our decision in In re Marriage of Snow, 322 Ill. App. 3d 953, 750 N.E.2d 1268 (2001), which she interprets as holding that the filing of a petition is not required prior to a hearing on the termination of maintenance pursuant to the conjugal cohabitation provision of section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/510(c) (West 2004)). She prays that we reverse Snow and find the filing of a petition necessary to maintain an action to abate maintenance. Finally, respondent has requested that we remand this matter and order the

trial court to enter judgment in her favor on the issues of maintenance and of all other debts and obligations of the petitioner, including past-due mortgage payments owed to her by petitioner as set forth in their marital settlement agreement. In the original opinion issued in this appeal, we affirmed the trial court on all three issues. In re Marriage of Thornton, No. 3--05--0722 (August 9, 2006). We now vacate that Opinion and, for the reasons that follow, we reaffirm our decision in Snow, reverse the trial court's order finding the obligation to pay maintenance had abated, and remand the matter for consideration of respondent's requests for extended, increased and permanent maintenance and petitioner's responsibility of compliance with the other debts and obligations he had pursuant to the judgment of dissolution and its included marital settlement agreement. BACKGROUND In June 1999, Wade Thornton petitioned for dissolution of his marriage to the respondent Rosiemary Thornton. The parties reached a settlement agreement, and a judgment for dissolution of their marriage incorporating that agreement was entered on March 19, 2001. By the terms of the settlement agreement, Wade agreed, inter alia, to pay maintenance in the amount of $275 per month for 30 months and to pay "one-half (1/2) of the second mortgage on the marital house his portion of which totals $373.50, commencing with the November 2000 payment until such debt is paid in full." In September 2004, respondent filed a six-count petition for indirect civil contempt and a petition for maintenance, alleging that petitioner had failed to make any of the required maintenance payments and had failed to make payments or comply with obligations as set forth in the settlement agreement. She sought $8,250 in unpaid maintenance, $15,313 in unpaid mortgage payments, statutory interest, relief from her obligation to pay creditors for debts 2

assigned to her husband in the settlement agreement but discharged by him in bankruptcy, execution of the deed quit-claiming the house to her, and payment of attorney fees. She also sought to increase the amount of maintenance and to make it permanent. In December 2004, the trial court entered a finding that Wade had not paid any maintenance and that a past-due balance of $8,250 plus statutory interest remained due. However, the court later reserved that decision and scheduled an evidentiary hearing on Wade's oral claim that maintenance had "automatically terminated due to a person of the opposite sex living congically [sic] with Mrs. Thornton.". That evidentiary hearing took place on June 7, 2005. No transcript was made of the proceedings, but we do have a "bystander's report" agreed to by the parties and certified by the court to be "a true and correct depiction of the evidence presented at trial." That report establishes that Wade Thornton admitted that he had made none of the agreed-upon payments, but claimed he had no obligation to do so because his brother had moved in with Rosiemary shortly before entry of the judgment of dissolution and was living with her in a conjugal relationship. He called two witnesses who both offered some circumstantial support for his contention that such a relationship existed. Petitioner's friend, Gary Irby, testified that he saw the brother's car outside respondent's home on "various occasions." Although Mr. Irby did not live in respondent's neighborhood, he claimed to have seen the car outside the house on at least one occasion when he attended a moving sale in the vicinity in February 2004. Wade's aunt, Viola Thornton, was his second witness. Her only evidence was that she had gone to Rosiemary's home a couple of times and Wade's brother was there and that occasionally the brother would call her and she could tell from her caller ID that he was calling from Rosiemary's home. She testified that this occurred in 2004. 3

Respondent testified that she had allowed the petitioner's brother to move in "out of the goodness of her heart" because "he did not have a place to stay [and] was in essence, homeless." She testified that the brother stayed and slept in the basement and that they led separate lives. She denied that there was at any time any romance or conjugal relationship between them. No other evidence was presented to the court, and respondent's description of the "relationship" stands undisputed. On June 23, 2005, the trial court entered an order abating in full all maintenance pursuant to section 510(c) of the Illinois Marriage and Dissolution of Marriage Act. 750 ILCS 5/510(c) (West 2002). The trial court made no findings of fact and offered no reasons for abating petitioner's maintenance obligation. The trial court also made no mention in the order of the mortgage payments or any of the other issues raised in the petition for indirect civil contempt. Respondent filed a timely motion for reconsideration asking the court to reverse its prior finding regarding maintenance and to enter an order on petitioner's other debts and obligations. The court denied the motion citing, without explanation, In re Marriage of Snow, 322 Ill. App. 3d 953, 750 N.E.2d 1268 (2001). Respondent timely appealed. ANALYSIS I. Meaning and Impact of In re Marriage of Snow Respondent has challenged the validity and effectiveness of the trial court's order on the grounds that her former husband had not filed a petition seeking relief from his obligation to pay maintenance. She apparently believes that this court's decision in In re Marriage of Snow, 322 Ill. App. 3d 953, 750 N.E.2d 1268 (2001), held that no petition need be filed in order to terminate maintenance on the basis of "conjugal cohabitation," and she has asked us to reverse that decision. We initially address that issue. 4

In Snow, as in the instant case, we considered a claim that a continuous conjugal relationship had abated the obligation of the former spouse to pay court-ordered maintenance. The complaining husband filed a petition seeking an order finding the existence of the requisite relationship and relieving him of his maintenance obligation. The trial court granted the husband's petition and abated maintenance effective on the date the petition was filed. The case proceeded to this court on cross-appeals. The wife was unsuccessful in her challenge to the findings (1) that conjugal cohabitation had been proven and (2) that the termination language in the settlement agreement was not sufficient to override the automatic termination prescribed in the statute. The husband's challenge to the date of filing of the petition as the trigger for abatement of the maintenance obligation fared better. We agreed with the relevant reasoning in In re Marriage of Gray, 314 Ill. App. 3d 249, 731 N.E.2d 942 (2000), and adopted a portion of its holding stating: "Further, we agree with In re Marriage of Gray that the triggering period for termination of maintenance is the time the conjugal cohabitation began and not when the petition to terminate maintenance is filed. Gray, 314 Ill. App. 3d at 253, 731 N.E.2d at 946. Therefore, we hold that the trial court erred in terminating William's maintenance obligations from the time he filed his petition. Accordingly, we remand this cause for the trial court to determine when Dawn began the cohabitation and to terminate her payments as of that date." Snow, 322 Ill. App. 3d at 957, 750 N.E.2d at 1271. We thus affirmed the issues raised by the wife and reversed that asserted by the husband, 5

remanding for a determination of the proper triggering date for termination. Clearly nothing in our order found that maintenance payments could be discontinued without the filing of a petition and an order of the court. Similarly in Gray, the abatement action was initiated by the husband's filing of a petition to terminate maintenance. Gray, 314 Ill. App. 3d at 250-51, 731 N.E.2d at 944. Gray differed factually from Snow in that the Grays' settlement agreement had a clause providing "in relevant part, that John's obligation to pay maintenance `terminated on the earliest of the following events: (a) the remarriage of Patricia; or (b) the death of either party; or (c) the cohabitation of Patricia.'" Gray, 314 Ill. App. 3d at 250, 731 N.E.2d at 944. The Gray court stated its holdings as follows: "We therefore hold that the trial court erred in concluding that John's obligation to pay maintenance terminated on the date of filing the petition rather than from the date Patricia began to cohabit with Evans on a resident, continuing, conjugal basis. We also hold that the settlement agreement clearly intended that John could terminate maintenance, without first petitioning the court, from the date Patricia cohabited with Evans. Similar to section 510(c), the settlement agreement does not contain any provision requiring that a petition must first be filed to terminate maintenance or that the obligation to pay ceases from the date of the petition when Patricia cohabits with another." (Emphasis added.) Gray, 314 Ill. App. 3d at 253, 731 N.E.2d at 946. While the Snow court adopted the holding in Gray that the obligation to pay maintenance 6

terminates from the date cohabitation begins, the court did not deal with a failure to file a petition or hold that such a filing was unnecessary. The instant case does, however, directly raise the issue of whether a spouse who has been ordered by the court to pay maintenance can cease such payments unilaterally without benefit of a petition and a determination that there had, in fact, been "conjugal cohabitation." We believe, contrary to the decision in Gray, that such unilateral action is contrary to the Illinois Marriage and Dissolution of Marriage Act and flies in the face of extensive and long-standing family case law. The Gray court derived support for its conclusion that a petition was unnecessary by comparing the language of sections 510(a) and 510(c) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West 2002)) and finding that 510(a) specifically requires filing a motion and giving notice while 510(c) does not expressly include such a requirement. As did Gray, we begin our analysis by comparing those two sections. Section 510(a) provides in pertinent part: "Except as otherwise provided in [two irrelevant sections], the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and, with respect to maintenance, only upon a showing of a substantial change in circumstances." 750 ILCS 5/510(a) (West 2002). Section 510(a) also included additional language relating to modifications of child-support orders that were not pertinent to the issue of maintenance. However, since Gray and Snow were decided, the legislature has added a subsection (a-5) that sets out a number of factors to be 7

considered, in addition to those set out in section 504(a), when addressing efforts to modify or to terminate maintenance. They speak to modification or termination for reasons of practicality and of need; they do not address the termination factors that are still set out in section 510(c). We do not, therefore, believe that the amendment changes in any significant way the analyses undertaken in Gray and Snow or in the instant case. Section 510(c) provides

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