No. 3--00--0369

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	THIRD DISTRICT

A.D., 2001

In Re:  MARRIAGE OF			)  Appeal from the Circuit Court

						)  of the 12th Judicial Circuit

DAWN A. SNOW,				)  Will County, Illinois,

						)

	Petitioner-Appellant,	)  

	Cross-Appellee,		)

						)  No.  96--D--14796

		    v.			)	

						)

WILLIAM A. SNOW			)

						)  Honorable

	Respondent-Appellee,	)  Vincent Cerri,

	Cross-Appellant.		)  Judge Presiding.

_________________________________________________________________

	JUSTICE SLATER delivered the opinion of the court:

_________________________________________________________________

	The petitioner, Dawn A. Snow, appeals from the order of the circuit court of Will County terminating her right to receive

maintenance from the respondent, William A. Snow.  On appeal,

Dawn contends that the trial court erred in finding that she

engaged in a continuing, conjugal relationship with another man. 

On cross-appeal, William argues that the trial court erred in

terminating maintenance from the date of his petition rather than

the date the cohabitation began.  For the following reasons, we

affirm the trial court’s order granting William’s petition. 

However, we remand this cause for the trial court to determine

when Dawn began the cohabitation and to terminate her payments as

of that date.

	The record reflects that the Judgment of Dissolution was

entered on February 27, 1998.  In the Judgment, William was

ordered to pay $1,800.00 per month in maintenance to Dawn until

May 31, 1999.  Thereafter, a reduced amount of maintenance was to

be paid pursuant to a schedule set forth in the marital

settlement agreement.  The terms of the marital settlement

agreement, which were incorporated into the Judgment of

Dissolution, also stated that "maintenance shall terminate after

the above payments have been made or earlier upon order of

court."

	On May 14, 1999, William filed a petition to terminate

maintenance.  In the petition, William alleged that Dawn had been

engaged in a continuing conjugal relationship with Jaime Littrell

between August 1997 and February 1999.  

	At the hearing on the petition, Jaime Littrell testified

that sometime in 1997 he was living with his mother who was

preparing to move out of state.  At that time, Dawn invited him

to move into her home.  Jaime moved into Dawn's son's old room.

	Jaime testified that when he moved into her home, Dawn told

him that he did not need to initially pay rent because her

husband was paying the mortgage.  However, she said that in March

1998 he would have to pay her $300 per month.  Jaime said that

they had an agreement to split the cost of utilities and

groceries.  He also maintained the lawn and the pool.   

	According to Jaime, in March 1998 he began paying rent.  He

paid the rent in cash because he had no checking account.  He said Dawn gave him receipts for the payments, but he was unable

to produce any receipts at the hearing.  

	Jaime also testified that he and Dawn had sexual relations

three to four times a week during the year and a half that they

lived together.  Further, he admitted that on one occasion he

secretly videotaped them having sexual relations without Dawn's

consent.  He described their relationship during that time as

“sex partners.” 

	Dawn testified that Jaime lived in her home for a year and a

half.  She said that she allowed Jaime to live in her home

because he had no place to live after his mother moved out of

state.  According to Dawn, she only offered him one of her

bedrooms until he got himself "up on his feet."  During that

time, he never paid her any rent or contributed toward her

mortgage payments.  She said Jaime paid for his own groceries and

telephone charges but sometimes he would give her money for food,

gas, and chemicals for the pool.  She also said Jaime did some

yard work and work around the pool.   

	Dawn admitted that while they lived together, she and Jaime

socialized about two to three times a month for dinner, a movie,

or drinks.  They sometimes went out with her friends, but never

with 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 after

they had been out together and she had had too much to drink. 

Finally, Dawn noted that during the time Jaime resided in her home he never paid for any of her personal expenses, they did not

co-mingle their funds, and they owned no joint credit cards.

	After hearing all the evidence, the trial court found that

Jaime's testimony was more credible than Dawn's.  Therefore, it

found that William established that Dawn engaged in a continuing

conjugal relationship with Jaime within the meaning of the

statute.  Accordingly, it terminated William's maintenance

obligation from the date he filed his petition and ordered Dawn

to reimburse William for the overpayment.

	On appeal, Dawn argues that the trial court erred in

terminating her maintenance because William failed to prove that

she and Jaime engaged in a continuing, conjugal relationship. 

	Illinois law provides for termination of maintenance when

there is a resident, continuing, conjugal relationship between

the maintenance recipient and a third party.  750 ILCS 5/510(c)

(West 1998).  To prove a continuing, conjugal relationship, an

ex-spouse must show that the former spouse is involved in a de facto husband and wife relationship.  In re Marriage of Leming, 227 Ill. App. 3d 154, 590 N.E.2d 1027 (1992).  To determine if

such a relationship exists, courts have examined the following

factors: (1) the length of the relationship; (2) the amount of

time the couple spends together; (3) the nature of activities

engaged in; (4) the interrelation of their personal affairs; (5)

whether they vacation together; and (6) whether they spend

holidays together.  In re the Marriage of Herrin, 262 Ill. App. 3d 573, 634 N.E.2d 1168 (1994).   A reviewing court gives great deference to the trial court's factual findings because the trial

court stands in the best position to weigh the credibility of all

the witnesses.  In re Jones, 285 Ill. App. 3d 8, 673 N.E.2d 703 (1996).  Finally, a court of review will not reverse a trial

court's finding concerning the existence of a de facto relationship unless that finding is contrary to the manifest

weight 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 dating

activities as dinners, movies, and drinks.  Although Dawn

testified that they did not have a sexual relationship, we defer

to the trial court's finding that Jaime's account of their sexual

relationship was more credible.  They exchanged Christmas and

birthday presents.  They split household chores, and they

socialized with Dawn's friends.  Based upon the totality of the

circumstances, we find that the trial court's finding of a de facto husband-wife relationship between Dawn and Jaime was not against the manifest weight of the evidence.  Therefore, we hold

that the trial court properly found a continual, conjugal

relationship between Dawn and Jaime and granted William's

petition to terminate maintenance.  

	On cross-appeal, William argues that the trial court erred

in terminating maintenance from the date of his petition rather

than the date the cohabitation began.  In support of his

contention, he cites to In re Marriage of Gray, 314 Ill. App. 3d 249, 731 N.E.2d 942 (2000).  In Gray, the appellate court held 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 (2000).  In response, Dawn argues that the

terms of the settlement agreement that "maintenance shall

terminate after the above payments have been made or earlier upon

order of the court" is a separate agreement between the parties

that precludes application of the "conjugal cohabitation" section

of the Marriage and Dissolution of Marriage Act (Act).  In the

alternative, Dawn contends that the Gray case fails to follow well settled Illinois law.

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

			"Unless otherwise agreed by the parties

in a written agreement set forth in the

judgment or otherwise approved by the court,

the obligation to pay future maintenance is

terminated upon the death of either party, or

the remarriage of the party receiving

maintenance, or if the party receiving

maintenance cohabits with another person on a

resident, continuing conjugal basis."  750

ILCS 5/510(c) (West 1998).  

	We reject Dawn's argument that the terms of the settlement

agreement constitute a separate agreement which only allows

maintenance to be terminated upon completion of payment or the entry of a court order.  We do not read that section as limiting

the termination of maintenance to only those two instances. 

Therefore, we find that the "conjugal cohabitation" section of

the Act applies in this case.  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 (2000).  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.

	The judgment of the circuit court of Will County is affirmed

in part and remanded in part.

	Affirmed in part; remanded in part.

	BRESLIN and McDADE, J.J., concur.