Opinion
NO. 5-16-0434
10-11-2017
In re MARRIAGE OF CAROL GAINES, Petitioner-Appellee, and SCOTT GAINES, Respondent-Appellant.
NOTICE
Decision filed 10/11/17. The text of this decision may be changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of the same.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of St. Clair County.
No. 10-D-824
Honorable Patricia H. Kievlan, Judge, presiding.
PRESIDING JUSTICE MOORE delivered the judgment of the court.
Justices Goldenhersh and Chapman concurred in the judgment.
ORDER
¶ 1 Held: Circuit court's order denying respondent's petition to terminate maintenance affirmed where it was not against the manifest weight of the evidence to find that, based on the totality of the circumstances, the petitioner was not in a de facto marriage with her paramour. Circuit court did not abuse its discretion by finding respondent in indirect civil contempt for ceasing maintenance payments concurrently with the filing of his petition to terminate maintenance because doing so was a willful violation of the maintenance order.
¶ 2 The respondent, Scott Gaines (Scott), appeals the September 16, 2016, order of the circuit court of St. Clair County that denied his petition to terminate maintenance, held
him in indirect civil contempt, and ordered him to pay the petitioner, Carol Gaines (Carol), her attorney fees. For the following reasons, we affirm.
¶ 3 FACTS
¶ 4 On September 30, 2013, Scott was ordered to pay Carol $3,750 per month in maintenance. On February 29, 2016, Scott filed in the circuit court a petition to terminate maintenance. The petition alleged that Scott's maintenance obligation should be terminated because since the entry of the supplemental judgment of dissolution of the parties' marriage, there had been a substantial change of circumstances in that Carol was residing with another person on a resident, continuing, conjugal basis. On May 27, 2016, Carol filed a petition for rule to show cause, requesting the circuit court to enter an order finding Scott in indirect civil contempt because he had discontinued the maintenance payments.
¶ 5 A hearing on the petitions was conducted on August 26, 2016. At the hearing, William Kenny testified that he has been employed by the St. Clair County Sheriff's Department for 23 years. He is further employed as an adjunct professor at Lindenwood University and as a certified private investigator at Triken Consulting, Inc. Scott hired Kenny in the capacity of a private investigator in May 2016 to conduct surveillance of Carol's residence in O'Fallon to determine if a Brian Gatewood was cohabitating there with her. Kenny determined at the commencement of the investigation that Brian's truck had been registered at Carol's address since October 26, 2015, and his Facebook page indicated that he was in a relationship with Carol. Kenny conducted surveillance of Carol's residence on several occasions over a three-week period, and each time he did so
he observed Brian or his truck at the residence. At the close of the investigation, Kenny concluded that Brian was residing at the residence with Carol.
¶ 6 Carol testified that Brian resides with her "at times," but she denied that he stays at her home seven days per week. She testified that "some weeks he might stay two days[,] [o]ther weeks he might stay four or five," and others he stays the entire week. She indicated that Brian rented a room at a home in Springfield in 2014, where he stays when he is not with her. Carol acknowledged that she disclosed on a request to admit that Brian stays at her home seven days per week. However, she clarified that she answered as such because Brian does sometimes stay seven days per week, but not always. Carol testified that Brian is currently going through a divorce and although he receives all of the mail from his divorce lawyer at her residence, he receives other mail at his home in Springfield.
¶ 7 Carol testified that she and Brian both work for her parents and when they are not working they spend their spare time together. She testified that she and Brian have been in an exclusive, continuing, romantic relationship for over eight months. She and Brian share meals together, spend holidays together, go on dates, go to movies and concerts, and take turns paying when they go out to eat. They also work in the yard together, divide household chores, do home improvements together, go shopping together, and take turns paying for groceries.
¶ 8 Carol testified that her parents own the residence where she lives and she pays them $1,200 per month rent "when I can." She explained that her ability to pay rent was hindered when Scott discontinued the maintenance payments. She testified that Brian
does not financially support her nor does she rely on his financial support in any way for her living expenses. She admitted that she and Brian occasionally—but not consistently—split the utility bills equally. She noted that Brian never pays any rent to her parents nor does he ever give her money to put in her checking account. She further indicated that she and Brian do not own property together, do not have joint bank or credit card accounts, and do not have a shared cell phone plan. Carol added that neither she nor Brian pay for any expenses related to the other's children.
¶ 9 Carol referred to Brian as her "soul mate" and testified that he has "helped me through a lot." She admitted that she and Brian sleep in the same bed and engage in sexual intercourse, but she has no plans to ever marry him. Carol testified that Brian has no legal right to be at her home without her permission and he never spends the night there if she is not there. Although Carol does not plan to evict Brian, she testified that she has no plans to continually reside with him in the future because "I don't know what the future will hold." She indicated that if she and Brian do not break up, they will continue operating under the current arrangement. She testified that Brian keeps clothing and a few tools at the residence, Brian's son stays in the guest room of the residence during Brian's parenting time every other weekend, and Brian's son keeps toys, underwear, and pajamas at the residence.
¶ 10 Regarding the parties' children, Carol testified that Brian tries to teach them respect and honesty and tries to guide them, but that he "would never try to be a father figure to them." She explained that Brian gets along with them, treats them with respect, and does not abuse them, but he does not treat them as his own children. She did
acknowledge, however, that she once told Scott that Brian was a better father to their daughter than he was. She noted that Brian has participated in a few extracurricular events with the children. Specifically, he attended her daughter's soccer practice and her son's eighth grade graduation and he went to her daughter's school to eat lunch with her and assisted her with a school project. Carol denied that she and Brian take vacations together, although they took their children to her parents' cabin in Rolla, Missouri, in June 2016 for a weekend getaway. Carol refused to classify the trip as a vacation because "we did not pay for anything." She testified that she and Brian take their children to fun places like Eckert's, the City Museum, Grant's Farm, and the zoo.
¶ 11 Carol testified that she was unaware that Brian's truck was registered at her address because "I'm not into his affairs as to where he registers." However, her response in the request to admit shows that she in fact knew that the vehicle was registered there. She indicated that she and Brian do not own any vehicles together, do not own real or personal property together, and have no loans together. Carol testified that Scott failed to pay maintenance in April, May, June, and July 2016, and she incurred reasonable attorney fees as a result of his failure to pay.
¶ 12 Scott testified that he drives by Carol's residence almost every day because it is located on a main thoroughfare in town. Scott observes Brian's vehicle at the residence every time he drives by. Scott further testified that he saw Brian at his daughter's Christmas party in December 2015, at her swimming lesson in January 2016, and at her soccer practice two weeks prior to the hearing, and on an occasion when he took lunch to his daughter, Brian arrived the same day to take lunch to her. Scott also saw Brian at his
son's graduation in May 2016, and he is aware that Brian helps the children with school projects and accompanies them to the movies, to the City Museum, and to the zoo. Scott opined that Brian plays an active role as a father figure to the children.
¶ 13 Scott testified that he filed the petition to terminate maintenance in February 2016. He did not pay maintenance in April, May, June, or July 2016, and there was a deficiency in payment for August 2016, although there was no court order terminating maintenance.
¶ 14 Michael Dauphinee testified that he owns property and resides in Springfield with his wife and three children. He stated that he is friends with Brian and has known him for approximately five years. Michael explained that Brian, who is going through a divorce, began renting Michael's basement for $200 per month in 2014. Over the last year, Michael observed Brian coming and going from the basement an estimated two to five days per week. On cross-examination, Michael agreed that he does not keep a written log of Brian's presence at the home in Springfield. Between May 13 and June 2, 2016, Michael knew Brian was there at times, but he could not specify how often or how many nights he actually stayed.
¶ 15 The circuit court took the matter under advisement and entered an order on September 16, 2016, denying Scott's petition to terminate maintenance. The order stated that Scott failed to prove that Carol and Brian were in a de facto husband-and-wife relationship, thereby failing to establish that they were cohabiting on a resident, continuing, conjugal basis. The circuit court held that, at best, Carol and Brian "are involved in a dating relationship." The circuit court further noted that an important consideration in proving a de facto husband-and-wife relationship is the effect of the new
relationship on Carol's continuing need for support. The court observed that Carol was unable to pay rent when the maintenance ceased and that Brian's occasional contributions toward utilities and groceries did not rise to the level of proving a de facto husband-and-wife relationship. Accordingly, the circuit court denied Scott's petition to terminate maintenance, held him in indirect civil contempt, and ordered him to pay Carol's attorney fees. Scott filed a timely notice of appeal. Additional facts will be provided as necessary throughout the remainder of this order.
¶ 16 ANALYSIS
¶ 17 Scott raises the following two issues on appeal: (1) whether the circuit court erred by denying his petition to terminate maintenance; and (2) whether the circuit court erred by finding him in indirect civil contempt and ordering him to pay Carol's attorney fees.
¶ 18 I. Petition to Terminate Maintenance
¶ 19 The first issue is whether the circuit court erred by denying Scott's petition to terminate maintenance. The circuit court found that Carol and Brian were not cohabiting on a continuing, resident, conjugal basis because Scott failed to present sufficient evidence that Carol and Brian were in a de facto husband-and-wife relationship. See 750 ILCS 5/510(c) (West 2016). "The reviewing court will not upset the trial court's ruling on a petition to terminate maintenance based on the existence of a de facto marriage unless that ruling is against the manifest weight of the evidence." In re Marriage of Miller, 2015 IL App (2d) 140530, ¶ 40. "A decision is against the manifest weight of the evidence if the opposite conclusion is clearly evident or if the decision is unreasonable, arbitrary, or not based on the evidence." Id. "In determining whether a judgment is
contrary to the manifest weight of the evidence, the reviewing court views the evidence in the light most favorable to the appellee." In re Marriage of Ricketts, 329 Ill. App. 3d 173, 177 (2002). "We will affirm the trial court's ruling if there is any basis to support the trial court's findings." Id. In determining whether a de facto husband-and-wife relationship exists, "[c]ourts have generally looked at those facts which would lead a reasonable observer to believe that the individuals were husband and wife." In re Marriage of Lambdin, 245 Ill. App. 3d 797, 801 (1993).
¶ 20 Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act provides that, unless the parties agree otherwise, "the obligation to pay future maintenance is terminated *** if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis." 750 ILCS 5/510(c) (West 2016). "The purpose of section 510(c) is not to control public morals." Miller, 2015 IL App (2d) 140530, ¶ 40. "Rather, '[t]he rationale behind termination of maintenance when resident, continuing, conjugal cohabitation exists is [to prevent] the inequity created when the ex-spouse receiving maintenance becomes involved in a husband-and-wife relationship but does not legally formalize it, with the result that *** she can continue to receive maintenance.' " Id. (quoting In re Marriage of Herrin, 262 Ill. App. 3d 573, 577 (1994)).
¶ 21 "It is the burden of the party seeking termination of maintenance to demonstrate that the former spouse is involved in a [resident,] continuing, conjugal relationship." In re Marriage of Bates, 212 Ill. 2d 489, 524 (2004). In determining whether that burden has been met, courts look to the totality of the circumstances and consider the following list of factors, which is nonexhaustive: "(1) the length of the relationship; (2) the amount
of time spent together; (3) the nature of activities engaged in; (4) the interrelation of personal affairs (including finances); (5) whether they vacation together; and (6) whether they spend holidays together." Miller, 2015 IL App (2d) 140530, ¶ 40. "Each case seeking termination of maintenance based on a recipient's conjugal cohabitation rests on its own facts, given the unique nature of each interpersonal relationship." Bates, 212 Ill. 2d at 524.
¶ 22 Here, Scott argues that his obligation to pay maintenance should be terminated because the evidence establishes that Carol and Brian are residing on a resident, continuing, conjugal basis and are in a de facto marriage, contrary to the circuit court's findings. Scott emphasizes Carol's responses to his request for admission of facts that as of July 18, 2016, she and Brian had been in a romantic relationship for over eight months, that they engage in sexual relations, that they share meals and spend holidays together, that they buy birthday and Christmas gifts for each other, that Brian's truck is registered at Carol's address, that Brian's son stays with Brian at Carol's residence during Brian's parenting time, and that Brian spends seven nights per week at Carol's residence.
¶ 23 In looking at the length of the relationship as a factor in determining whether a de facto husband-and-wife relationship exists (Miller, 2015 IL App (2d) 140530, ¶ 40), although there is no black-and-white rule, the court in the case of In re Marriage of Caradonna, 197 Ill. App. 3d 155, 160 (1990), characterized a relationship as short-term where the couple had lived together for nine months and had sexual relations for six or seven months. Here, Carol testified that, as of the time of the trial, she and Brian had been in a romantic relationship for over eight months. Scott has provided no case to
indicate that an eight-month relationship is considered significant, and in fact, the findings of Caradonna establish that Carol and Brian's relationship would be considered short-term (197 Ill. App. 3d 155), thereby calling into question the continuing nature. We are mindful of Carol's testimony that she has no plans to evict Brian, but she also stated that she has no plans to marry him or to continually reside with him in the future because "I don't know what the future will hold."
¶ 24 The second factor is the amount of time spent together (Miller, 2015 IL App (2d) 140530, ¶ 40). There is conflicting evidence in this regard. Although Scott emphasizes Carol's response on the request to admit that Brian stays with her seven days per week, Carol clarified at the hearing that she responded as she did because Brian sometimes stays seven days per week and she did not want to respond incorrectly. She testified that Brian resides with her "at times," that "some weeks he might stay two days[,] [and] [o]ther weeks he might stay four or five." Brian's landlord corroborated Carol's testimony by stating that he sees Brian at the home in Springfield two to five days per week. The private investigator concluded that Brian lives at Carol's house, but as the circuit court pointed out in its order, Carol's house was only under surveillance by the investigator on six random occasions throughout a three-week period of time. The same applies to Scott's observations of Brian or his truck on the occasions when he drove by Carol's residence. We find that the circuit court could find that these random observations do not amount to evidence of Brian cohabiting with Carol on a continuous basis.
¶ 25 Another factor is the nature of activities Carol and Brian engage in (Miller, 2015 IL App (2d) 140530, ¶ 40). Carol testified that she and Brian sleep in the same bed and
engage in sexual intercourse. She indicated that they work together and in their spare time they share meals, go on dates, go out to eat, work in the yard, do home improvements, go shopping, and take their children on day trips for fun. The circuit court stated in its order that at best, Carol and Brian are involved in a dating relationship and as such, they would be expected to engage in such activities.
¶ 26 Akin to the factor of the nature of activities is whether Carol and Brian vacation together (Miller, 2015 IL App (2d) 140530, ¶ 40). There is no evidence that the couple has vacationed together. Carol testified that she and Brian have never vacationed together. They took their children to Carol's parents' cabin on a single occasion for a weekend getaway, but Carol did not consider it a vacation because it did not cost anything. An additional factor is whether Carol and Brian spend holidays together (Miller, 2015 IL App (2d) 140530, ¶ 40). Carol testified that they do.
¶ 27 Regarding the factor of the interrelation of personal affairs (including finances) (Miller, 2015 IL App (2d) 140530, ¶ 40), the private investigator testified that Brian's truck had been registered at Carol's address for 10 months. Carol testified that she was unaware that Brian's truck was registered at her address, but her response in the request to admit indicates that she in fact knew it was registered there. Carol testified that Brian receives mail from his divorce lawyer at her address, but he receives other mail at his residence in Springfield. Carol and Brian take turns paying when they go out to eat. They also take turns paying for groceries. Carol testified that her parents own the house where she lives and she pays them $1,200 per month in rent "when I can." She reported that Brian does not support her financially, nor does she rely on his financial support in
any way for her living expenses. Scott stated in his brief that Carol and Brian split the electric, utility, internet, and cable bills. A review of the record reveals Carol's testimony that Brian occasionally—not consistently—splits utility bills with her. Carol further testified that Brian never pays any rent to her parents, nor does he ever give her money to put in her checking account. Moreover, she and Brian do not own property together, do not own vehicles together, do not have joint bank or credit card accounts, do not have loans together, do not have a shared cell phone plan, and do not pay for any expenses related to each other's children. Carol testified that Brian keeps some clothing and a few tools at her home and his son stays in the guest room of her home during Brian's parenting time. Brian's son keeps some toys and clothing at the residence as well. The record supports a conclusion that Carol and Brian's interrelation of personal affairs does not rise to the level of that of husband and wife.
¶ 28 We reassert that the aforementioned list of factors is not exhaustive (Miller, 2015 IL App (2d) 140530, ¶ 40) and that every case is unique and rests on its own set of facts (Bates, 212 Ill. 2d at 524). Also noteworthy is Scott's testimony that he observed Brian at his daughter's Christmas party, her swimming lessons, her soccer practice, and her school during lunch. Scott also saw Brian at his son's graduation. Scott added that Brian helps the children with school projects and takes them to the movies, the zoo, and the museum. Scott opined that Brian plays an active role as father figure to the children. Carol acknowledged that Brian attended the extracurricular activities and that he teaches the children respect and honesty, but he "would never try to be a father figure to them." She specified that Brian treats them respectfully and does not abuse them, but he does not
treat them as his own children. She admitted that she once told Scott that Brian was a better father to their daughter than he was. Accordingly, there is conflicting testimony in this regard.
¶ 29 Besides the aforementioned factors, also noteworthy is case law that emphasizes that, in order to prove the existence of a de facto marriage, the petitioner must prove that the recipient spouse's need for maintenance is significantly affected as a result of the new relationship. The Illinois Supreme Court stated in In re Marriage of Sappington, 106 Ill. 2d 456, 467-68 (1985), that " 'an important consideration, divorced from the morality of conduct, is whether the cohabitation has materially affected the recipient spouse's need for support because she either received support from her co-resident or used maintenance monies to support him' " (quoting In re Marriage of Bramson, 83 Ill. App. 3d 657, 663 (1980)). Here, the circuit court found, and we agree, that the only evidence of financial contributions from Brian were his occasionally splitting the utility bills and occasionally helping pay for groceries. These sporadic contributions do not decrease Carol's need for maintenance. On the occasions when Brian is present in the home, that would necessarily generate an increase in utility bills and groceries. Accordingly, his intermittent donations toward those expenses would apply toward the cost of his own consumption and in no way changes Carol's need to provide for herself and to maintain her residence. In fact, Carol testified that she was unable to pay rent when Scott ceased making maintenance payments, thereby supporting the circuit court's position that Carol's need for maintenance was not affected by her relationship with Brian.
¶ 30 Scott argues that the circuit court relied primarily on Carol's financial need for maintenance and focused on the fact that Carol and Brian do not commingle assets. A review of the circuit court's order belies that assertion. The circuit court looked at the evidence as a whole, indicated that it made its decision based on the totality of the circumstances, and delineated much of the evidence in its seven-page order.
¶ 31 We acknowledge the evidence in the record that could have potentially led the circuit court to make a different determination. Nevertheless, even if we "may have decided this matter differently had we presided at trial," "a reviewing court may not reverse the judgment of the trial court merely because different conclusions could be drawn or if reversal would involve merely a substitution of judgment for that of the trier of fact." In re Marriage of Reeder, 145 Ill. App. 3d 1013, 1021 (1986). Moreover, "[q]uestions of witness credibility and conflicting evidence are matters for the trial judge to resolve as the trier of fact." In re Marriage of Sturm, 2012 IL App (4th) 110559, ¶ 6. "Because he sees and hears the witnesses, [the trial judge] is in a position superior to a reviewing court for assessing their demeanor, judging their credibility, and weighing the evidence." Id.
¶ 32 We further note that we are bound by our standard of review which requires us to view the evidence in the light most favorable to Carol and allows us to reverse only if the opposite conclusion is clearly evident or if the decision is unreasonable, arbitrary, or not based on the evidence. Miller, 2015 IL App (2d) 140530, ¶ 40; Ricketts, 329 Ill. App. 3d at 177. Because there is evidence in the record to support the circuit court's determination, because an opposite conclusion is not clearly evident, and because the
determination was not unreasonable or arbitrary, we cannot say it was against the manifest weight of the evidence. Miller, 2015 IL App (2d) 140530, ¶ 40; Ricketts, 329 Ill. App. 3d at 177. Accordingly, we affirm the circuit court's decision to deny Scott's petition to terminate maintenance.
¶ 33 II. Indirect Civil Contempt
¶ 34 The final issue on appeal is whether the circuit court erred by finding Scott in indirect civil contempt and ordering him to pay Carol's attorney fees. "The standard of review for contempt orders is abuse of discretion." Western States Insurance Co. v. O'Hara, 357 Ill. App. 3d 509, 515 (2005). "An abuse of discretion occurs only where no reasonable person would take the view adopted by the trial court." In re Marriage of Moore, 307 Ill. App. 3d 1041, 1043 (1999).
¶ 35 The crux of Scott's argument on this issue is that, if the circuit court erred by denying his petition to terminate maintenance, it correspondingly erred by finding him in indirect civil contempt and ordering him to pay Carol's attorney fees. In responding solely to Scott's argument, because we find proper the circuit court's decision regarding the petition to terminate maintenance, we also find proper the circuit court's decision to hold Scott in indirect civil contempt.
¶ 36 "Generally, civil contempt occurs when a party fails to do something ordered by the trial court, resulting in the loss of a benefit or advantage to the opposing party." In re Marriage of Charous, 368 Ill. App. 3d 99, 107 (2006). "Contempt that occurs outside the presence of the trial court is classified as indirect contempt." Id. "The existence of an order of the trial court and proof of willful disobedience of that order are essential to any
finding of indirect civil contempt." Id. Here, an order was entered by the circuit court on September 30, 2013, ordering Scott to pay Carol $3,750 per month in maintenance. That order was still active at the time of the hearing. Carol testified that Scott failed to pay maintenance in April, May, June, and July 2016, and she incurred reasonable attorney fees as a result of his failure to pay. Scott admitted that he did not pay maintenance from April to July 2016 and there was a deficiency in the payment for August 2016, notwithstanding the fact that the maintenance order was still active. Scott's willful disobedience of the maintenance order resulted in a loss of a benefit to Carol. (Charous, 368 Ill. App. 3d at 107). Accordingly, it was not an abuse of discretion for the circuit court to find Scott in indirect civil contempt and to order him to pay Carol's attorney fees.
¶ 37 CONCLUSION
¶ 38 For the foregoing reasons, we affirm the September 16, 2016, order of the circuit court of St. Clair County.
¶ 39 Affirmed.