In re Marriage of Thornton ( 2007 )

No. 3--05-0722
Filed April 17, 2007.
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
WADE S. THORNTON, ) Peoria County, Illinois,
)
Petitioner-Appellee, )
)
and ) No. 99--D--375
)
ROSIEMARY THORNTON, )
) Honorable Stephen Kouri,
Respondent-Appellant. ) 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
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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.
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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.
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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,
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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 – unchanged and in its entirety:
"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 2002).
We agree with Gray that the two sections distinguish between regular or routine
modifications and terminations of maintenance (section 510(a)) and the automatic termination of
an obligation to continue previously ordered payments set out in section 510(c). We believe,
however, that the focus of that difference relates to the timing of the relief and not to the
mechanics or procedure for securing it. That is, section 510(a) allows modification only as to
installments accruing after the due notice provided by the filing of a motion. By contrast,
section 510(c) provides that the obligation to make future maintenance payments is
automatically terminated when one of these three particular events occurs. See 750 ILCS
5/510(c) (West 2002). Logic compels us to conclude that section 510(c) creates an exception to
section 510(a)’s limitation of relief to installments after the filing of the motion or petition, but
8
does not establish an exemption from the obligation to file a petition in order to conform the
court’s order to present circumstances.
We draw support for this construction of the two statutory sections from section 511,
which provides in pertinent part:
"A judgment of dissolution or of legal separation or of a
declaration of invalidity of marriage may be enforced or modified
by order of court pursuant to petition.
(a) Any judgment entered within this State may be
enforced or modified in the judicial circuit wherein such judgment
was entered or last modified by the filing of a petition with notice
mailed to the respondent at his last known address or by the
issuance of summons to the respondent." 750 ILCS 5/511 (West
2002).
It can thus be seen that any modification or enforcement of the judgment of dissolution entered
in the State of Illinois must be initiated by the filing of a petition and notice. Indeed, review of
the entirety of section 511 shows that a modification or enforcement of such a judgment no
matter where it was entered requires the filing of a petition or motion. Clearly, then, any change
in the judgment must be made by the court and not as a result of independent action by the
parties.
Moreover, Gray is quite plainly distinguishable on its facts from Snow and from the
instant case. The essence of the decision in Gray was its determination that the clause in the
settlement agreement requiring only cohabitation (without any requirement that it be continuous
and conjugal in nature) by the wife was self-actuating and did not, therefore, constitute a change.
9
This would parallel the situation where the judgment provided for termination of child support
when the child reaches the age of 18. Such termination is not a change – it is actually directed
by the judgment.
The differences, of course, with Snow are that (1) there was no such clause in the
settlement agreement or otherwise in the judgment of dissolution and no argument to be made
that the judgment or the settlement agreement incorporated therein can be read as actually
requiring the termination without action by the court, and (2) the termination created by section
510(c) requires factual determinations that any cohabitation is on a "resident, continuing,
conjugal basis" and when such relationship commenced. Moreover, William Snow actually had
filed a petition. Accordingly, when determining the limited issues presented in Snow, we
adopted only the relevant portions of Gray dealing with the triggering period for termination and
the substantive factors used to examine a claim of conjugal cohabitation. See Snow, 322 Ill.
App. 3d at 957, 750 N.E.2d at 1271.
Snow did not hold that a petition was unnecessary to bring the issue of termination of
maintenance on the basis of conjugal cohabitation before the court. We, therefore, find the Act
requires that a petition must be filed and the requisite findings concerning conjugal cohabitation
must be made before a court-imposed obligation to pay maintenance as ordered can be
terminated. Thornton filed no such petition. We, therefore, next consider whether the court’s
order is rendered void by this fact.
By the terms of the order of dissolution, which was entered on March 19, 2001, Wade
Thornton was required to pay Rosiemary $275 per month 30 months. The period of maintenance
would, therefore, have expired on September 19, 2003. On September 14, 2004, Rosiemary filed
(1) her petition for maintenance alleging a complete failure of Wade to pay any maintenance,
10
asserting a change of health and financial circumstances and seeking payment of the previously
required past maintenance and extended, increased, and permanent maintenance; and (2) the
petition for indirect civil contempt seeking past maintenance and an order requiring Wade to
comply with all other debts and obligations pursuant to the judgment of dissolution. At the
December 30, 2004, hearing on her petition, the court entered an order finding an arrearage in
the amount of $8,250 plus statutory interest for maintenance. No other findings were made at
that time. Apparently Wade interposed an oral contention that his former wife was cohabiting
with his brother and the hearing was continued so the court could take evidence on his claim.
Thus, at the time of the hearing on June 7, 2005, Rosiemary’s petition for increased and
permanent maintenance was before the court and there was no petition to invoke the court’s
jurisdiction to consider termination of maintenance on the basis of conjugal cohabitation
pursuant to section 510(c). Because such termination requires factual findings that (1) resident,
continuing conjugal cohabitation had actually occurred and (2) when it commenced, the
termination cannot be had absent action by the court and appropriate modification of the
judgment of dissolution.
If Rosiemary had filed no petition, we believe the judgment terminating maintenance
would simply be void. However, since the court had initial jurisdiction to consider the issue of
maintenance, we find the order was merely voidable. Rosiemary has not specifically sought to
void the order; rather she has asked to have the judgment abating the obligation to pay
maintenance reversed on the merits.
We accede to that request because (1) she has been declared in public circuit court
documents to have conjugally cohabited with a man, (2) that decision was affirmed by this court
in a published opinion, (3) the finding of conjugal cohabitation had no proven basis in law or
11
fact, and (4) we believe both fairness and principles of judicial economy require us to consider
that judgment of the trial court on its merits.
II. Section 510(c) Cohabitation.
As previously discussed, the substantive decision at issue in this case is governed by
section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/10(a) (West
2004)). To reiterate, that section provides:
“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 2004).
The payee spouse seeking termination of maintenance (in this case, Wade Thornton) has
the burden of proof. He must prove by the manifest weight of the evidence the existence of a
resident, continuing conjugal relationship. To satisfy that burden, he 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 Sunday, 354 Ill. App. 3d 184, 820 N.E.2d 636 (2004). To
demonstrate the existence of a de facto husband and wife relationship, while proof of sexual
conduct is no longer necessary, something more than merely living under the same roof with a
person of the opposite sex is required; lesser involvement by recipient spouse does not require
termination of maintenance. In re Marriage of Lambdin, 245 Ill. App. 3d 797, 613 N.E.2d 1381
(1993).
12
In Snow, which we have now confirmed as the law in this district, the following factors
for examining a claim of conjugal cohabitation have been identified: (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. Snow, 322 Ill. App. 3d at 956, 750 N.E.2d at 1270.
After a careful reading of the amended bystanders’ report agreed to by the parties and
certified by the trial judge to be “a true and correct depiction of the evidence presented at trial,”
we can find no evidence relating to any of the six factors and, consequently, no evidence that
there ever was a de facto husband and wife relationship between Rosiemary and Wade’s brother.
With regard to any conjugal aspects of the brother’s residence in the house, the only evidence
was her testimony. As recited in the amended bystanders’ report:
“She testified that Petitioner’s brother stayed and slept in the
basement and that she and the brother lead separate lives. She
stated that at no time was there any romance or conjugal
relationship between her and Petitioner’s brother. She testified
that the only reason that he moved in was because he did not have
a place to stay, in essence was homeless, and she let him stay there
out of the goodness of her heart.”
That testimony is wholly undisputed.
Petitioner admitted that he had never paid any of the maintenance or mortgage
obligations set out in the settlement agreement, claiming respondent’s conjugal cohabitation as
justification. The only evidence presented by petitioner to prove the six factors required to find a
resident, continuing conjugal relationship was (1) his own bald and limited assertion that his
13
brother had moved in with his former wife shortly before the entry of judgment providing for
maintenance; (2) the testimony of petitioner’s friend, Gary Irby, who stated he had seen the
brother’s car parked outside Ms. Thornton’s home on “various occasions” but at least one time
when he had attended a moving sale in the neighborhood in February 2004; and (3) the
testimony of petitioner’s aunt, Viola Azetta Thornton, who stated that she had gone to
respondent’s home a couple of times and petitioner’s brother was there, and that petitioner’s
brother had called her from respondent’s home phone, something she knew because of her caller
ID. She could not give a month, but knew that this had occurred in 2004. None of the three
witnesses provided any evidence pertaining to any of the six Snow factors.
The sum total of this evidence shows that Rosiemary allowed her former husband’s
homeless brother to stay in her basement and to occasionally use her phone between March 2001
and February 2004 and that they lived “separate lives” without any romance or conjugal
relationship between them. There is no evidence of the amount of time, if any, Rosiemary
spends with Wade’s brother; the nature of the activities, if any, they engage in together; the
interrelation, if any, of their personal or financial affairs; whether they vacation together; or
whether they spend holidays together. In short, there is no evidence relating to five of the six
factors that are to be used as the basis for determination. Moreover, failing such substantive
evidence of resident, continuing conjugal cohabitation, a mere showing that Wade’s brother
lived in Rosiemary’s basement for roughly three years does not prove “a relationship” of any
duration – thus failing the first factor as well.
We find that there is no evidence of a resident, continuing conjugal relationship in this
case and that there is no basis for termination of maintenance pursuant to section 510(c) of the
Act. We, therefore, reverse the order of the circuit court of Peoria County abating petitioner’s
14
maintenance obligation and direct the court to compel petitioner to pay respondent the amount it
previously found to be due and owing, together with statutory interest, in its order of December
30, 2004.
III. Continuing Maintenance
We next consider, to the extent the record permits, Rosiemary’s two petitions seeking an
increase in the amount of maintenance and that her entitlement to it be made permanent, and
other relief required by the judgment of dissolution. We make the following observations
pertinent to this petition.
The record discloses that on September 14, 2004, Rosiemary filed the previously
described petition for maintenance and six-count petition for indirect civil contempt. Only one
count of the second petition related to maintenance, The remaining five counts alleged other
specific violations by Wade of the judgment of dissolution and the incorporated settlement
agreement. We find no indication that the circuit court has ever substantively addressed or
resolved any of those other issues, although the court does appear to have denied both petitions
in their entirety in its original order of June 23, 2005, the transcript of the September 6, 2005,
hearing on the motion for reconsideration, and the order of September 19, 2005, denying the
motion for reconsideration.
As we have previously noted , the 30 months during which respondent was to have been
paid maintenance expired on September 19, 2003. Her new petition for maintenance was not
filed until September 14, 2004. We, therefore, address as a preliminary matter whether this
petition was timely filed to invoke the trial court’s jurisdiction. We believe that it was.
The relevant language in the settlement agreement provides:
“The Husband shall pay to the Wife as and for maintenance the
15
sum of Two Hundred and Seventy-five Dollars ($275.00) per
month for a total of 30 months, the first payment being due on the
first day of the week following the effective date of this
Agreement and subsequent payments being due on the first day of
each month thereafter. The maintenance shall be reviewed at the
end of this period, to determine whether it should continue and, if
so, to what extent.” (Emphasis added.)
We look to three cases to assess the jurisdiction of the trial court to address Rosiemary’s
petition. In In re Marriage of Tucker, 223 Ill. App. 3d 671, 672, 585 N.E.2d 1105 (1992), this
court assessed maintenance language that provided:
“[T]he Plaintiff shall pay to the Defendant, as and for
maintenance, the sum of Twelve Hundred Dollars ($1,200.00) per
month, commencing the first day of the month succeeding the date
of this Judgment and continuing at said amount for Seventy-seven
(77) consecutive months thereafter for a total of Seventy-eight (78)
months or until the Defendant shall die, remarry, or until further
Order of this Court, whichever shall first occur.”
None of the other language could be construed as providing for review of that maintenance
award.
The Tucker court held that the parties had clearly and unambiguously limited the duration
of maintenance (Tucker, 223 Ill. App. 3d at 675, 585 N.E.2d at 1108) but that it did “not clearly
preclude modification of the amounts of maintenance and other benefits within the prescribed
periods” (Tucker, 223 Ill. App. 3d at 677, 585 N.E.2d at 1110). The decision in Tucker is
16
clearly distinguishable from the instant case because here the parties have expressly provided for
review of maintenance to determine if it should continue and, if so, to what extent.
We next turn to Rice v. Rice, 173 Ill. App. 3d 1098, 528 N.E.2d 14 (1988). In that case,
involving a provision for rehabilitative maintenance, the judgment granted maintenance for a
period of 42 months and did not reserve jurisdiction to review the award at the end of that time.
Rice, 173 Ill. App. 3d at 1101-02, 528 N.E 2d at 16. The court framed the issue as:
“What happens when a petition to modify an award of
maintenance, limited in its duration, is filed to extend the duration
of the award when the court has not expressly reserved jurisdiction
to extend the term? In answering this question, we find it is
important to determine whether the petition for modification is
filed during the period set for rehabilitative maintenance or after
the term of rehabilitative maintenance has expired and been
completed.” Rice, 173 Ill. App. 3d at 1102, 528 N.E.2d at 16-17.
The court held that where there has been no express provision for review of the award,
the trial court has jurisdiction to extend the award only if the petition requesting the extension is
filed within the identified maintenance period. When it is filed after the term has expired, the
court lacks jurisdiction. The Rice court also noted that the petition had been filed after payment
in full of the maintenance award and after the trial court’s jurisdiction to modify the maintenance
award had terminated. Rice, 173 Ill. App. 3d at 1103, 528 N.E.2d at 17.
Although Rosiemary’s petition was filed after the period of maintenance had expired,
there was an express provision for review. Moreover, Wade had never made a single
maintenance payment to Rosiemary. For these reasons, the forfeiture of the right to seek an
17
extension of the duration of maintenance found in Rice has not occurred in the instant case.
Rather, this situation is more closely analogous to that found in this court’s decision in In
re Marriage of Rodriguez, 359 Ill. App. 3d 307, 834 N.E.2d 71 (2005). In that case, the
husband did not dispute that the trial court had ordered “reviewable” maintenance. He did,
however, claim that his former wife was barred from seeking maintenance by her failure to
petition for review within the maintenance period.. This court distinguished Rice because there
had been no provision for review in that case, and then held:
“Nevertheless, it is our view that anytime the court provides for
maintenance reviewable after a time specified, the court retains
jurisdiction to review the maintenance until one or both of the
parties petitions for review. Upon review the trial court can
consider whether maintenance should continue and if so, whether
the amount should be increased or decreased. Until a party
petitions for review, the maintenance award shall continue as
ordered.” Rodriguez, 359 Ill. App. 3d at 313, 834 N.E. 2d at 76.
Thus, in the instant case, the trial court retained jurisdiction to review maintenance until
Rosiemary filed her petition in September 2004. The trial court has determined by its order of
December 30, 2004, that $8,250, plus statutory interest, was due and owing from Wade at the
end of the 30 months. Unlike the situation in Rodriguez, Rosiemary’s award of maintenance was
for a period certain (30 months). Consequently, Wade’s obligation, as imposed by the judgment
of dissolution, ended in September 2003 but is reviewable. Pursuant to section 510(a),
discussed previously, the earliest any additional maintenance installments can accrue would be
September 2004 when the petition was filed and notice was given.
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Turning to the issues presented in Rosiemary’s petition for maintenance and unreviewed
by the trial court, the record discloses that in September 2001, six months after entry of the
dissolution judgment in which certain marital obligations and debts were assigned to Wade, he
secured a discharge of some of those debts and obligations through bankruptcy. Rosiemary has
averred that, as a result of his action, she became obligated for not only the debts assigned to her
in the judgment, but also for some or all of those assigned to her former spouse. There is also a
suggestion that because of his failure to make requisite payments to her and his creditors she fell
behind in her own financial obligations and was required to file for bankruptcy. Her allegations,
if proven, could support a finding of a substantial change in circumstances. See In re Marriage
of Letsinger, 321 Ill. App. 3d 961, 748 N.E.2d 812 (2001). Rosiemary, who is 60 years old, has
also alleged that her health has deteriorated and that she can no longer continue the foster
parenting which has previously been a substantial element of her support. The record also
discloses that she and Wade adopted two of the several foster children they took in and that his
child support obligation ended for both upon majority. Rosiemary subsequently adopted a third
foster child for whom apparently Wade has no responsibility.
The order totally abating maintenance and those denying the two petitions filed by
Rosiemary precluded development of an evidentiary basis for ruling on her request for extended,
increased, and permanent maintenance. We note that there has also been no evidence presented
(save Wade’s admission that he had made no payments of the mortgage), no factual findings and
no legal determination of Wade’s obligations with regard to other issues raised in the petition for
indirect civil contempt and various motions for attorney fees. Accordingly, we remand this
matter to the circuit court of Peoria County for the purpose of addressing all of the remaining
issues.
19
CONCLUSION
We find that the case of In re Marriage of Snow did not hold that a petition was
unnecessary to invoke the jurisdiction of the court to terminate maintenance on the basis of
conjugal cohabitation pursuant to section 510(c) of the Illinois Marriage and Dissolution of
Marriage Act. With that clarification, we confirm that Snow remains the law in this district.
Further, for the reasons set forth in this pinion, the order of the circuit court abating the
maintenance obligation of petitioner, Wade Thornton, on the basis of conjugal cohabitation of
his former spouse is reversed on the merits. The order of December 30, 2004, finding a
maintenance arrearage is reinstated and that obligation shall be enforced. The remaining issues
raised by Rosiemary’s petition for Maintenance, petition for indirect civil contempt, and
petitions for fees, and not resolved by the trial court, are remanded for further proceedings
consistent with this opinion and the legal obligations of the parties.
Reversed and remanded with direction.
CARTER and SCHMIDT, JJ., concur.
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