201 9 IL App ( 3d ) 1 80 208 Opinion filed April 29, 2019

____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT 2019
In re MARRIAGE OF AMY B. ) CHURCHILL, ) ) P etitioner -Appell ee , ) ) and ) ) JOHN CHURCHILL, ) ) Respondent-Appellant. ) Appeal from the Circuit Court of the 10 th Judicial Circuit, Tazewell County , Illinois Appeal No. 3-18-0208 Circuit No. 16-D-397 Honorable Timothy J. Cusack Judge, Presiding

______________________________________________________________________________ JUSTICE O ’BRIEN delivered the judgment of the court, with opinion. Justice s Carter and McDade concurred in the judgment and opinion.

_____________________________________________________________________________ O PINION
¶ 1 Respondent John Churchil l 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 petition2 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 foll owing witnesses and e vidence 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, s he 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 wi th 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 her3 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 va cationed to
Las Vegas with Jared to celebrate his birt hday. 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 t hat Jared may not be in her life forever. Amy acknowledged Jared would likely move back to Texas and their relationship would end. She was no t interested in marrying again. ¶ 6 Jared testified that he co

- owned and operated a hail damage repair business with h is 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 in to 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.4 ¶ 7 John testified as to A my’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 datin g Jared at Christmas time 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 se rious 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 w ho passed the marital house on her way to work testified that she had seen a bla ck truck at the house between 7:30 a.m. and 8 a.m. in October 2016 but could no t identify it as Jared’s truck.5 ¶ 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 concerning cohabitation that indicated Amy and Jared wer e 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 a warding permanent maintenance. ¶ 16 We start with John’s challenge to the trial court’s denial of his petition to terminate maintenance. John argue s 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 “coh abits 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 per sonal affairs, and whether they (5) vacation and6 (6) spend holidays together. In re Marr iage 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 exist s unless the finding is against the manifest weight of the evidence. In re Marriage of Toole , 2 73 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 T he trial court found that (1) Amy and Jared had been in a relationship between 8 and 12 months ; they met after Jared mov ed 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 brothe r at t heir commercial business ; Jared did not change his address to Amy’s house or move in any furniture or personal belong ing s; (3) Amy and Jared spent significant time together as typ ical of a new relationship; (4) the relationshi p was sexual; (5) Jared did no t 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 o r 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 estate7 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, 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 a n engagement; and (12) Amy acknowledged the parties discussed marriage , said she was not interested in remarrying a nd told Jared the same. He said they talked about moving to Texas but did not pursue the plan. ¶ 19 T he findings made by the trial court establi sh that Amy and Jared were involved in a n 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 95 5 . 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 basi s and granted the former husband’s petition to terminate maintenance. Walther , 2018 IL App (3d) 170289, ¶ 33. T he 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. T he former wife stored her clothes at the boyfriend’s house, bought groceries and cooked for her boyfriend’s family,8 traveled with her boyfriend and referred to a picture of her, him , and each of their daughters a s 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 mail ed t here

. Id. ¶ 18. She also used the address for her drive r ’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 chil dhood friend after she and her husband separated and she eventually moved back to her hometown, where he r 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 , t here 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

se ven - month period of surveillanc e, 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 w eekend 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. J ar e d 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. Unlike the wife in Walther , he did not participate in the day

- to

- day living activities of Amy’s household.9 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 beginnin g 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 th e 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 inco me 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

. 750 ILCS 5/ 504(b- 1)(2) (West Supp. 2017) . 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 potential10 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

s eeking maintenance to the other spouse’s education, training, career or ca reer potential , or license; (13) any valid agreement of the parties; and (14) any other factor found to be just a nd 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 & Parker , 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 aw ard permanent maintenance for an abuse of discretion. In re Marriage of Dunseth , 260 Ill. App. 3d 816, 833 (1994 ). ¶ 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 statu tory 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 ma rriage except for a 10

- hour per week , hourly- wage position that she11 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 h e 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 o ngoing 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

.