Opinion
No. 2-17-0164
01-26-2018
In re MARRIAGE OF EKATERINA L. MADDEN, Petitioner and Counterrespondent-Appellee, and CHARLES J. MADDEN III, Respondent and Counterpetitioner-Appellant.
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 Du Page County. No. 14-D-1081 Honorable Neal W. Cerne, Judge, Presiding. JUSTICE SPENCE delivered the judgment of the court.
Justice Jorgensen concurred in the judgment.
Justice Schostok specially concurred with the judgment.
ORDER
¶ 1 Held: The trial court's denial of respondent's petition to terminate maintenance was not against the manifest weight of the evidence: the evidence did not establish that petitioner had entered into a de facto marriage, as it did not show a mutual agreement to a permanent relationship; it was insufficient that petitioner and the third party had had a child (as the result of a pregnancy that was not mutually planned) and that to some extent they were sharing a residence to care for the child. ¶ 2 Charles J. Madden III, the respondent and counterpetitioner in a dissolution-of-marriage proceeding, appeals from the trial court's denial of a petition by which he sought to terminate maintenance to his ex-wife Ekaterina L. Madden, the petitioner and counterrespondent, based on her alleged de facto marriage with Jay Rushlow II. He asserts that the ruling was against the manifest weight of the evidence on the factual issue of de facto marriage and that the trial court gave legally improper consideration to Ekaterina's financial circumstances and to whether she "would need to have an abortion to keep maintenance." We hold that the ruling was adequately supported by the evidence and that the trial court did not give weight to improper factors. We therefore affirm the denial of Charles's petition.
¶ 3 I. BACKGROUND
¶ 4 Ekaterina filed a petition for dissolution of marriage on June 3, 2014; Charles filed a counterpetition on June 9, 2014. The court entered an order dissolving the parties' marriage on January 4, 2016. Charles received custody of the parties' six children, with Ekaterina having restricted visitation rights. Charles also kept the marital home. However, the court awarded permanent maintenance to Ekaterina. ¶ 5 Charles filed a petition to terminate maintenance on January 4, 2017. He alleged that Ekaterina had been "cohabitating on a continuing conjugal basis with a non-related person for several months." The court held an evidentiary hearing on the petition over two days starting on January 25, 2017. Both parties appeared pro se. Charles, although an attorney, conceded his unfamiliarity with courtroom practice. ¶ 6 The hearing established certain facts as effectively undisputed. Sometime in early 2016, Ekaterina met Jay through an Internet dating service. As the two began a dating relationship, Ekaterina posted Facebook status updates expressing her happiness and love for Jay. She and Jay established some joint friendships and Ekaterina had family visit her at Jay's house. Not long after the two started dating, Ekaterina, who was 42, became pregnant. Jay and Ekaterina apparently agreed that Ekaterina would not terminate the pregnancy and that the two would not give the child up for adoption. Ekaterina regularly slept at Jay's house for much of her pregnancy. She gave birth to a daughter on January 3, 2017—that is, three weeks before the hearing. Jay and Ekaterina were both involved in caring for the child. They gave partially conflicting answers about who was paying for the child's needs. ¶ 7 Other factual matters were uncontested. Ekaterina said that, when the court ordered her to move out of the marital residence, she moved in with her mother, who lived in age-restricted senior housing. (That is, the infant could not live at the apartment.) Ekaterina's mother was a hoarder to the extent that Ekaterina's only bed in the apartment was also used for storage. The lack of a proper bed made it difficult for her to sleep at her mother's apartment while she was pregnant. Jay testified that he was an "aircraft technician." He always worked night shifts and usually worked six nights a week from 10 p.m. to 8:30 a.m. Ekaterina told the court that she wanted a "relationship" with Jay, but that he was unwilling. She also said that her pregnancy was the result of unprotected sex. ¶ 8 The court ruled in Ekaterina's favor:
"Now, what I find objectionable to [Charles's] position is that because [Ekaterina]—her only option to avoid maintenance [sic] is that she is supposed to have [a]n abortion or put her child up for adoption. That's the only way. Because now the child is living with the father, oh, they are cohabitating. They are not cohabitating. That's where the child is living. And she is allowed to go there to provide for care. So I don't see any evidence that their lives are together. I think it's a terrible situation. The finances of the parties in my mind have forced her into this position. She has no choice and I don't think that's what the legislature or the Appellate Courts have said when they say cohabitation.
She has been forced into this in my mind because she has a child. I was frankly shocked that she had a child because I thought she was too old. I thought she was past the age limit when women could have a child. And I agree with her at closing argument she probably didn't think it was a possibility. I agree with that. So it wasn't in my mind it wasn't an intentional act. And she gets $1300.00 a month. I agree with it. You can't get an apartment for that. She can't live anywhere. The whole thing is terrible. Financially, it's terrible. And I can't believe that the Appellate Court would say that because she is forced into this financially bad position where her child has to live somewhere else that she should somehow now lose her maintenance because she has no choice. So the motion is denied for the findings [sic] that I have found on the record."Charles timely appealed from this ruling.
¶ 9 II. ANALYSIS
¶ 10 Charles argues first that we should reverse the trial court's decision because it was against the manifest weight of the evidence. He argues second that the court misapplied the law by "considering whether Ekaterina would need to have an abortion to keep maintenance and other financial considerations" in deciding whether the relationship was conjugal. We disagree with Charles's analysis of the weight of the evidence, and we disagree with his characterization of the court's reasoning. ¶ 11 Unless the parties agree otherwise—which Ekaterina and Charles did not—an award of maintenance is subject to termination under section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/510(c) (West 2016)): the obligor's duty "to pay future maintenance *** terminate[s] *** if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis." This rule exists to prevent the inequity that would occur if those in de facto marriages were allowed to retain maintenance payments while those in de jure marriages automatically lost them. In re Marriage of Herrin, 262 Ill. App. 3d 573, 577 (1994). A spouse seeking termination of maintenance has the burden to prove the existence of a resident, continuing conjugal relationship. In re Marriage of Thornton, 373 Ill. App. 3d 200, 208 (2007).
"In determining whether the petitioner has met his or her burden, a court looks to the totality of the circumstances and considers the following nonexhaustive list of factors: (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. [Citation.] Each termination case turns on its own set of facts; just as no two relationships are alike, no two cases are alike. [Citation.] 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. [Citation.] 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. [Citation.]" In re Marriage of Miller, 2015 IL App (2d) 140530, ¶ 40.We emphasize, however, that the six factors are not a test for a de facto marriage or the elements of a de facto marriage. "[T]he circumstances of an intimate dating relationship are also likely to involve facts that fit into each of the six factors, such that those facts in their totality must attain a certain gravitas to establish a de facto marriage." Miller, 2015 IL App (2d) 140530, ¶ 46. "[T]he factors miss a key emotional factor that is likely present in any de facto marriage: intended permanence and/or mutual commitment to the relationship." (Emphasis in original.) Miller, 2015 IL App (2d) 140530, ¶ 48. A court should be cautious in finding a de facto marriage absent evidence that a couple intended to make the relationship permanent, that there was commingling of finances, and that the couple share a household and household duties. Miller, 2015 IL App (2d) 140530, ¶ 44. ¶ 12 The evidence here did not establish a de facto marriage. The court heard no evidence that Ekaterina and Jay had agreed to any kind of permanent romantic or domestic relationship. The two denied that they had such an agreement, although Ekaterina was frank about her desire for a permanent relationship. The evidence was not clear even that Ekaterina and Jay had any agreement about long-term coparenting. Furthermore, nothing in the evidence suggested that Ekaterina and Jay had intermingled finances. To be sure, Jay said that he was providing for the baby, but that was his duty as a parent regardless of whatever agreement he might reach with Ekaterina. The evidence showed something like a shared residence, given that Ekaterina spent many nights at Jay's house. However, as the court noted, the evidence largely placed Ekaterina there during Jay's working hours, making unclear the extent to which they had formed a household. Taken as a whole, the evidence was devoid of clear signs of permanence or mutual commitment; rather, the relationship appeared to be provisional and even precarious. ¶ 13 Charles suggests that the court failed to give proper weight to the fact that Ekaterina and Jay had a child together. We do not agree. Of course, a couple's deliberate choice to have a child together could suggest an agreement to have a permanent relationship, but the facts here do not suggest such a choice. The only evidence relevant to whether the pregnancy was intentional was Ekaterina's admission that the couple had unprotected sex. But that evidence, at most, went only to Ekaterina's intentions; no evidence suggested that the couple discussed birth control or the handling of a possible pregnancy. Unilateral decisions relating to birth control or pregnancy could be evidence weighing as much against a conjugal relationship as for it, as such a decision shows a lack of mutuality. We thus cannot disapprove the court's choice to treat the pregnancy and birth more as circumstances that created Jay and Ekaterina's particular relationship than as evidence that the relationship was conjugal. ¶ 14 Charles also suggests that the court gave insufficient weight to evidence of Ekaterina's attraction to Jay, such as Facebook status updates in which she talked about loving Jay. This argument fails to take into account the evidence of lack of reciprocity from Jay. However much Ekaterina might have wished for a permanent relationship with Jay, she could not unilaterally form a conjugal relationship. ¶ 15 Charles next argues that the court improperly considered Ekaterina's need for maintenance in deciding that no conjugal relationship existed. That argument misunderstands the court's reasoning. The court did not rule that Charles should continue to pay maintenance based on Ekaterina's need for it. Instead, it considered how her lack of resources drove her choices. The court was free to consider Ekaterina's literal need for a bed when it interpreted her decision to sleep at Jay's house. Similarly, Charles misinterprets the court's ruling when he argues that it improperly considered whether Ekaterina would "need to have an abortion to keep maintenance." The court's comments on adoption and abortion properly addressed two points. First, the court was making clear that it would not entertain a per se rule that two people who have a child together are in a conjugal relationship; such a rule would go against the definition of a conjugal relationship by implying that only by having an abortion or giving up the child for adoption could a pregnant recipient retain maintenance. Second, the court was elaborating on the considerations that we have just described: actions driven by external necessity should not be interpreted the same way that freer choices are. That Ekaterina stayed at Jay's house to care for her infant should not be interpreted the same way that visits of someone in less constraining circumstances would be. Neither of the court's points suggests that it based its decision to continue Charles's maintenance obligation on either Ekaterina's financial need or on the court's own concerns about adoption or abortion.
The court's comments that it was "frankly shocked that she had a child because [it] thought she was too old," and " [it] thought she was past the age limit when women could have a child," were inappropriate, in that they reflect the judge's personal opinion which was not relevant, and they incorrectly suggest that it is extremely unusual for a 42-year-old woman to become pregnant. The suggestion does not comport with either common experience or broadly available demographic information. With this in mind, we take it that Ekaterina essentially admitted that she knew that she was risking pregnancy. But the court's failure to understand that admission had no effect on the overall validity of the court's analysis: even supposing that Ekaterina deliberately risked pregnancy for her own reasons, the absence of any agreement with Jay about birth control or pregnancy would preclude such a choice from being evidence of anything but her personal desires. --------
¶ 16 III. CONCLUSION
¶ 17 Based on all of the above, we find no error in the court's ruling that Charles had not met his burden of showing a de facto marriage. We thus affirm the order denying the petition to terminate maintenance. ¶ 18 Affirmed. ¶ 19 JUSTICE SCHOSTOK, specially concurring: ¶ 20 Although I agree with the outcome of this case based on its unique facts, I write separately to emphasize the narrowness of our holding. ¶ 21 In this case, there was conflicting evidence regarding whether Ekaterina and Jay had mutually agreed to enter into the type of long-term relationship that would constitute a de facto marriage. It is clear that the two made at least some joint decisions, including the decision to engage in unprotected sex and, when that sex resulted in a pregnancy, to raise the child as their own in some fashion rather than pursue abortion or adoption. Further, the fact that Ekaterina had borne six children during her marriage to Charles certainly suggests that she was aware of the possibility that she could become pregnant if she did not use birth control, casting some doubt on her testimony that the pregnancy was unplanned. I also depart from the majority in its characterization of the decision to engage in unprotected sex as "unilateral," supra ¶ 13: Jay was equally able to have taken precautions against pregnancy, but apparently (like Ekaterina) chose not to. And although Ekaterina's living choices are of course constrained by her financial circumstances, she does have some choices: she could apply for housing assistance or search for lower-rent housing as a roommate; she could daily clear off her bed in her mother's apartment and sleep there; and she could seek additional assistance with daily living expenses such as food. Thus, I disagree that Ekaterina's choices were driven solely by her "literal need for a bed" or by "external necessity" (supra, ¶ 15). ¶ 22 Nevertheless, the trial court found that Ekaterina and Jay's relationship was not a de facto marriage. As the majority states, this conclusion was not against the manifest weight of the evidence, and based upon this standard of review, I must concur. Specifically, although the evidence showed that Ekaterina desired a long-term domestic relationship, Jay testified that he did not. The trial court found this testimony credible. Further, the trial court could conclude that Jay and Ekaterina had not taken responsibility for each other's support, as there was no evidence that they commingled the finances of their own daily living. Similarly, there was a non- relationship-based reason for Jay to allow Ekaterina to sleep at his house with the child (as she was unable to have the child at her mother's apartment, she could both exercise parenting time and ensure child care while he was at work). Again, given this evidence and the deferential standard of review applicable here, I must agree with the majority. However, I would caution strongly that no one should view this disposition as indicating that parties can simply decide to have a child together and live together while requiring an ex-spouse to continue to pay maintenance.