In re Marriage of McCormick
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Opinion
2020 IL App (1st) 191271-U Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.) Fourth Division Modified order filed November 5, 2020
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). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
) In re MARRIAGE OF ) ) Appeal from the Circuit Court CATHY McCORMICK, ) of Cook County. ) Petitioner-Appellant, ) No. 2007 D 2300009 ) and ) The Honorable ) Jeanne Cleveland Bernstein, ANTHONY McCORMICK, ) Judge Presiding. ) Respondent-Appellee. ) ) ______________________________________________________________________________
PRESIDING JUSTICE GORDON delivered the judgment of the court. Justices Hall and Lampkin concurred in the judgment.
ORDER
¶1 Held: The trial court’s judgment is affirmed, where (1) the “affidavit” of appellant’s son was admissible for impeachment purposes, and any substantive use of the affidavit was harmless; (2) appellant has forfeited any challenge to the use of the affidavit as an outline to her son’s testimony and, even if not forfeited, its use was not error; (3) the trial court’s finding of cohabitation was not against the manifest weight of the evidence; (4) the trial court did not act outside the scope of its jurisdiction by finding appellant “guilty of witness tampering”; and (5) the trial court did not err in awarding attorney fees. Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
¶2 The instant consolidated appeals arise from the trial court’s finding that appellant Cathy
McCormick was cohabitating with another man, resulting in the termination of appellee
Anthony McCormick’s maintenance obligation to her. Cathy appeals, claiming that Anthony’s
key witness—their son, Ryan—should not have been permitted to testify from an “affidavit”
prepared by Anthony, and further claiming that the trial court’s finding was against the
manifest weight of the evidence. Cathy also claims that the trial court erred in finding that she
had tampered with a witness and in awarding Anthony attorney fees. For the reasons that
follow, we affirm.
¶3 BACKGROUND
¶4 Cathy and Anthony were married in 1988, and had two children: a daughter born in 1991
and a son born in 1993. In 2007, Cathy filed a petition for dissolution of marriage and a
judgment for dissolution of marriage was entered on January 6, 2009. Under a marital
settlement agreement incorporated into the judgment for dissolution of marriage, Anthony was
to pay Cathy maintenance and child support, the amount of which was modified from time to
time.
¶5 On March 7, 2017, Anthony filed a “Petition to Determine Cohabitation, Terminate
Maintenance and for Other Appropriate Relief” (petition to terminate maintenance), alleging
that Cathy had been cohabitating on a “resident, continuing conjugal basis” with a man named
Michael Castagna since January 1, 2015, and that the two had lived together at Cathy’s
residence in California since that date. Anthony alleged that the relationship began prior to
2009, while Anthony and Cathy were still married, and that the two spent all of their time
together, including vacationing and spending holidays together. Anthony requested an order
terminating Cathy’s maintenance, ordering her to reimburse Anthony for any maintenance
2 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
payments after January 1, 2015, and an award of attorney fees because Cathy had concealed
her cohabitation.
¶6 In response, Cathy denied that she was cohabitating with Castagna. Cathy alleged that in
March and April 2014, she was severely ill, and was eventually diagnosed with Lyme disease,
which left her unable to care for herself without assistance. Consequently, beginning in June
2014, Castagna, her “platonic friend and now business partner,” traveled from Illinois to
California and acted as a part-time caretaker during the day to assist her with her daily needs
in conjunction with a different caretaker who assisted her overnight. Cathy’s health improved
in March 2015, and Castagna returned to his home in Winnetka.
¶7 Cathy claimed that she and Castagna had a romantic relationship from 2009 until 2011 that
terminated when she moved to California, and that they had maintained a platonic friendship.
Cathy and Castagna were also business partners in CatherineGraceO Enterprises, which they
created in December 2015, and Cathy claimed that any trips she had taken with Castagna were
business trips. Cathy further claimed that she had been involved in other dating relationships
since 2011, and that Castagna had been involved in a long-term monogamous relationship with
another woman in Winnetka from 2013 through 2015.
¶8 The parties engaged in discovery and, on February 7, 2018, Anthony filed a motion
seeking, among other things, discovery sanctions against Cathy for “Coercion and Intimidation
of a witness.” Anthony claimed that the parties’ adult son, Ryan, was his “key witness” and
had executed an affidavit detailing his personal observations about Cathy’s cohabitation with
Castagna. Anthony further claimed that, since he disclosed the affidavit to Cathy, “she has
repeatedly taken actions calculated to convince Ryan not to testify at the hearing in this matter,”
including sending him text messages; insisting on taking his deposition in Boston, despite his
3 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
willingness to travel to Chicago, and arriving early to meet with him privately; asking
irrelevant and harassing questions at the deposition; calling one of his close friends to ask if he
would testify against Ryan; issuing a subpoena, later quashed, to Google for all of his personal
e-mails; and personally contacting his college, without a subpoena, in an attempt to gain his
school records. Anthony asked that Cathy be sanctioned “for her clear abuse of the discovery
process and attempts to intimidate Anthony’s witness, Ryan, into not testifying and to harass
him.” On April 24, 2018, the trial court entered an order finding that “[Cathy] attempted to
intimidate a witness in this matter—Ryan McCormick” and barred her from “further
intimidating Ryan and otherwise discussing this case with Ryan.” The court’s order further
provided that “[a] determination of whether sanctions will be issued in connection with each
count of Anthony’s [motion] is hereby reserved until final hearing on Anthony’s Petition to
Terminate or Modify Maintenance and for Other Relief.”
¶9 The parties came before the trial court on Anthony’s petition to terminate maintenance over
a number of dates, beginning on September 14, 2018, and concluding on April 11, 2019. Both
Anthony and Cathy testified on their own behalf and as adverse witnesses. Additionally,
Anthony called as witnesses (1) Michael Goodman, a private investigator, and (2) Ryan, while
Cathy called as witnesses (1) Geoff Moore, a man who Cathy dated, (2) Jay Mitchell, the
manager of the building in which Castagna leased an apartment, and (3) Castagna. While the
witnesses’ testimony was sometimes taken out of order or divided among multiple hearing
dates, we discuss the testimony in the general order in which it was presented.
¶ 10 Michael Goodman testified, on behalf of Anthony, that he was a private investigator in
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2020 IL App (1st) 191271-U Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.) Fourth Division Modified order filed November 5, 2020
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). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________
) In re MARRIAGE OF ) ) Appeal from the Circuit Court CATHY McCORMICK, ) of Cook County. ) Petitioner-Appellant, ) No. 2007 D 2300009 ) and ) The Honorable ) Jeanne Cleveland Bernstein, ANTHONY McCORMICK, ) Judge Presiding. ) Respondent-Appellee. ) ) ______________________________________________________________________________
PRESIDING JUSTICE GORDON delivered the judgment of the court. Justices Hall and Lampkin concurred in the judgment.
ORDER
¶1 Held: The trial court’s judgment is affirmed, where (1) the “affidavit” of appellant’s son was admissible for impeachment purposes, and any substantive use of the affidavit was harmless; (2) appellant has forfeited any challenge to the use of the affidavit as an outline to her son’s testimony and, even if not forfeited, its use was not error; (3) the trial court’s finding of cohabitation was not against the manifest weight of the evidence; (4) the trial court did not act outside the scope of its jurisdiction by finding appellant “guilty of witness tampering”; and (5) the trial court did not err in awarding attorney fees. Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
¶2 The instant consolidated appeals arise from the trial court’s finding that appellant Cathy
McCormick was cohabitating with another man, resulting in the termination of appellee
Anthony McCormick’s maintenance obligation to her. Cathy appeals, claiming that Anthony’s
key witness—their son, Ryan—should not have been permitted to testify from an “affidavit”
prepared by Anthony, and further claiming that the trial court’s finding was against the
manifest weight of the evidence. Cathy also claims that the trial court erred in finding that she
had tampered with a witness and in awarding Anthony attorney fees. For the reasons that
follow, we affirm.
¶3 BACKGROUND
¶4 Cathy and Anthony were married in 1988, and had two children: a daughter born in 1991
and a son born in 1993. In 2007, Cathy filed a petition for dissolution of marriage and a
judgment for dissolution of marriage was entered on January 6, 2009. Under a marital
settlement agreement incorporated into the judgment for dissolution of marriage, Anthony was
to pay Cathy maintenance and child support, the amount of which was modified from time to
time.
¶5 On March 7, 2017, Anthony filed a “Petition to Determine Cohabitation, Terminate
Maintenance and for Other Appropriate Relief” (petition to terminate maintenance), alleging
that Cathy had been cohabitating on a “resident, continuing conjugal basis” with a man named
Michael Castagna since January 1, 2015, and that the two had lived together at Cathy’s
residence in California since that date. Anthony alleged that the relationship began prior to
2009, while Anthony and Cathy were still married, and that the two spent all of their time
together, including vacationing and spending holidays together. Anthony requested an order
terminating Cathy’s maintenance, ordering her to reimburse Anthony for any maintenance
2 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
payments after January 1, 2015, and an award of attorney fees because Cathy had concealed
her cohabitation.
¶6 In response, Cathy denied that she was cohabitating with Castagna. Cathy alleged that in
March and April 2014, she was severely ill, and was eventually diagnosed with Lyme disease,
which left her unable to care for herself without assistance. Consequently, beginning in June
2014, Castagna, her “platonic friend and now business partner,” traveled from Illinois to
California and acted as a part-time caretaker during the day to assist her with her daily needs
in conjunction with a different caretaker who assisted her overnight. Cathy’s health improved
in March 2015, and Castagna returned to his home in Winnetka.
¶7 Cathy claimed that she and Castagna had a romantic relationship from 2009 until 2011 that
terminated when she moved to California, and that they had maintained a platonic friendship.
Cathy and Castagna were also business partners in CatherineGraceO Enterprises, which they
created in December 2015, and Cathy claimed that any trips she had taken with Castagna were
business trips. Cathy further claimed that she had been involved in other dating relationships
since 2011, and that Castagna had been involved in a long-term monogamous relationship with
another woman in Winnetka from 2013 through 2015.
¶8 The parties engaged in discovery and, on February 7, 2018, Anthony filed a motion
seeking, among other things, discovery sanctions against Cathy for “Coercion and Intimidation
of a witness.” Anthony claimed that the parties’ adult son, Ryan, was his “key witness” and
had executed an affidavit detailing his personal observations about Cathy’s cohabitation with
Castagna. Anthony further claimed that, since he disclosed the affidavit to Cathy, “she has
repeatedly taken actions calculated to convince Ryan not to testify at the hearing in this matter,”
including sending him text messages; insisting on taking his deposition in Boston, despite his
3 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
willingness to travel to Chicago, and arriving early to meet with him privately; asking
irrelevant and harassing questions at the deposition; calling one of his close friends to ask if he
would testify against Ryan; issuing a subpoena, later quashed, to Google for all of his personal
e-mails; and personally contacting his college, without a subpoena, in an attempt to gain his
school records. Anthony asked that Cathy be sanctioned “for her clear abuse of the discovery
process and attempts to intimidate Anthony’s witness, Ryan, into not testifying and to harass
him.” On April 24, 2018, the trial court entered an order finding that “[Cathy] attempted to
intimidate a witness in this matter—Ryan McCormick” and barred her from “further
intimidating Ryan and otherwise discussing this case with Ryan.” The court’s order further
provided that “[a] determination of whether sanctions will be issued in connection with each
count of Anthony’s [motion] is hereby reserved until final hearing on Anthony’s Petition to
Terminate or Modify Maintenance and for Other Relief.”
¶9 The parties came before the trial court on Anthony’s petition to terminate maintenance over
a number of dates, beginning on September 14, 2018, and concluding on April 11, 2019. Both
Anthony and Cathy testified on their own behalf and as adverse witnesses. Additionally,
Anthony called as witnesses (1) Michael Goodman, a private investigator, and (2) Ryan, while
Cathy called as witnesses (1) Geoff Moore, a man who Cathy dated, (2) Jay Mitchell, the
manager of the building in which Castagna leased an apartment, and (3) Castagna. While the
witnesses’ testimony was sometimes taken out of order or divided among multiple hearing
dates, we discuss the testimony in the general order in which it was presented.
¶ 10 Michael Goodman testified, on behalf of Anthony, that he was a private investigator in
California, and had been retained by Anthony’s attorney to determine if Castagna resided at a
particular address on Catalina Avenue in Redondo Beach, California, which was a two-story
4 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
condominium building. Goodman testified that he conducted surveillance for five days by
parking in a spot where he had a view of the door to the residence; he did not believe that either
Cathy or Castagna noticed his presence. On February 20, 2017, he observed Cathy leaving the
residence and did not observe anyone else entering or leaving the residence that day. After
Cathy left, Goodman approached the door and knocked; a man fitting Castagna’s description
answered the door. At the hearing, Goodman identified a photo of Castagna as the man who
answered the door. Goodman testified that when Castagna answered, Goodman asked if
“Justin” was there, and Castagna responded that he did not know a “Justin” and that “ ‘[w]e’ve
been living here since September.’ ” Goodman testified that he recorded this conversation on
his phone and the audio recording was admitted into evidence over objection. Goodman also
performed surveillance on February 21, 2017, and February 22, 2017, but did not observe
Castagna either day. On cross-examination, Goodman testified that he was unaware that there
were multiple entrances and exits to the building. He also searched online and discovered a
different address for Castagna, but did not visit that address.
¶ 11 Ryan testified, on Anthony’s behalf, that he was currently 25 years old and lived in Boston.
He visited Cathy at her home in California five or six times between December 2014 and
December 2016, and had a “[g]ood, normal relationship” with her at the time; however, Ryan
testified that “I haven’t had much of a relationship with her since the case started.” Ryan
testified that he knew Castagna, who was “[m]y mother’s former boyfriend, I guess.” He first
met Castagna in 2008, around the time that Cathy and Anthony’s marriage was dissolved, when
Castagna was in a relationship with Cathy.
¶ 12 Ryan testified that he visited Cathy in California from December 20 to 28, 2016, and stayed
at her residence on Catalina Avenue. During his visit, Cathy, Castagna, and, occasionally,
5 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
Ryan’s sister stayed at the residence. Ryan testified that Castagna was staying there the entire
time he was visiting, and Ryan observed Castagna sleeping in Cathy’s bedroom, which
contained only one bed. Castagna was also present on Christmas day, including for the
exchange of gifts. Ryan testified that he believed that Cathy and Castagna were living together
full-time and that “it seemed like they were still dating together.” In January 2017, Ryan
mentioned his observations to Anthony. Ryan testified that Cathy had previously asked him
“fairly regularly” not to tell Anthony about Castagna, including in person and over the phone.
¶ 13 Ryan testified that, in February 2017, he had a conversation with Anthony and Anthony’s
attorney, during which he related his observations of Cathy and Castagna. In April 2017,
Anthony sent Ryan an affidavit via e-mail, which Ryan signed. Ryan was shown the affidavit
on the stand, and testified that it contained his signature and that all statements within it were
true and accurate. Anthony’s attorney then moved to admit the affidavit into evidence, and
Cathy’s attorney objected, claiming it constituted hearsay:
“ANTHONY’S ATTORNEY: Move to admit Exhibit 3.
CATHY’S ATTORNEY: Objection. It’s hearsay.
ANTHONY’S ATTORNEY: It goes to impeachment, your Honor.
CATHY’S ATTORNEY: It doesn’t go to impeachment. It’s improper
impeachment. You have to establish something to impeach first, 1; 2, I’ll grant it
with[in] the exception of a party admission of an opponent, which would be [Cathy’s]
statements made, to that extent; otherwise, it’s clearly a statement by a declarant made
outside of court being introduced for the truth of the matter asserted. He can testify to
it.
THE COURT: He is testifying to it.
6 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
CATHY’S ATTORNEY: That’s right. He doesn’t have to introduce an affidavit.
THE COURT: It’s the same thing. What is the difference?
CATHY’S ATTORNEY: One is an out of court statement.
THE COURT: That he is testifying to now that he did it and it’s factual, and I’m
going to admit it.
***
ANTHONY’S ATTORNEY: Thank you, your Honor.
CATHY’S ATTORNEY: Can I get an explanation on how it’s not hearsay, your
Honor?
THE COURT: Next question.”
¶ 14 After the admission of Ryan’s affidavit, Anthony’s attorney proceeded to question Ryan
about statements made in the affidavit. Ryan testified that in March 2017, after Anthony had
filed the petition to terminate maintenance, Cathy contacted Ryan and told him that if he was
asked about the matter, “it would be best to say I don’t know or I don’t remember.” Ryan
further testified that he believed that Castagna had moved in on January 1, 2015, because
“[t]hat is what my mom had told me, I believe.”
¶ 15 Ryan testified that he visited Cathy on December 23 and 24, 2014, and that he observed
Castagna living with her at that time. Additionally, Ryan testified that Cathy and Castagna
took trips together and, “[e]ssentially any time I would be home for spring break or not just
Christmas break they would always be together or doing things together.” Ryan testified that
he spent spring break of 2014 and 2015 with Cathy, and that Castagna was present for both.
¶ 16 Ryan testified that he believed their relationship was monogamous because Cathy had told
him that she would be asked on dates, but that she would decline “because she didn’t want to
7 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
hurt [Castagna] or at that time was still essentially together with [Castagna], I guess.” Ryan
was asked whether Cathy had ever informed him of a relationship with a man named Patrick
Naritel, and he testified that he knew that Naritel was Cathy’s friend and that she had wanted
to date him in late 2014 or early 2015, but did not because of Castagna.
¶ 17 Ryan testified that he was aware that Castagna worked with Cathy as the photographer for
her business. Ryan further testified that he believed that Cathy was financially supporting
Castagna between December 2014 and December 2016 “[b]ecause I believe she basically told
me that. It was kind of a known thing between my sister and I, that that was the case.” Ryan
was asked why he stated in his affidavit that he felt “uncomfortable” about Cathy and
Castagna’s relationship, and testified that “[i]t was uncomfortable for me because it seemed
the exact same as when they were openly in a relationship, and they were both denying being
in a relationship, but to me it didn’t seem any different.” Ryan was then asked about a statement
he made in the affidavit in which he claimed that Cathy’s actions had placed him in an
uncomfortable situation. Cathy’s attorney interjected:
“CATHY’S ATTORNEY: I’m sorry. Is he reading from the affidavit?
ANTHONY’S ATTORNEY: I’ve been walking him through the affidavit the
whole time.
CATHY’S ATTORNEY: Forget it. I don’t have an objection.”
Ryan then testified that he felt uncomfortable because “I just wasn’t comfortable with lying
about that sort of thing.”
¶ 18 Ryan testified that on March 23, 2017, Cathy called him and warned him that if he testified,
her attorneys would “destroy” him and “bring out personal information” about him, such as
his use of marijuana. When Ryan was deposed by Cathy’s attorney on October 24, 2017, he
8 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
was asked about his marijuana use and about whether he had fraudulently used Cathy’s credit
card. Cathy also sent a subpoena to Google for his personal e-mails and contacted his college.
Cathy also contacted several of Ryan’s friends. Cathy also insisted on deposing Ryan in
Boston, on a day when she knew that he had tickets to an all-day concert, even though he was
willing to travel to Chicago.
¶ 19 A number of text messages between Cathy and Ryan were admitted into evidence, and
Ryan was questioned about them. Ryan testified that several of the text messages referenced
Castagna’s presence. Ryan was asked about text messages in which he told Cathy that he did
not intend to testify in the case, and testified that at that point, “[i]t was still very early on in
the case, and I’ve never been involved with anything like this before.” At the time he sent the
messages, he was hoping that he would not be required to testify. Ryan further testified that he
“felt like [Cathy] was pushing me not to testify” through comments suggesting that without
him, Anthony had no case. Ryan was also asked about text messages in which he told Cathy
that he “ ‘had no idea [his affidavit] would be used as the main evidence in this case and I
really don’t agree with the things said in it.’ ” Ryan testified that, at the time, he was trying to
maintain a relationship with both of his parents and “[i]t really wasn’t so much that I disagreed
with anything. I just wanted the opportunity to better explain myself, but I couldn’t do that
clearly.” Ryan testified that Anthony never threatened to withhold financial support from Ryan
if he refused to testify; Anthony was currently paying $500 per month toward Ryan’s rent.
¶ 20 On cross-examination, Ryan testified that he knew that Cathy and Castagna worked
together and that the business was run out of Cathy’s residence. Ryan further testified that he
had observed them working together and had observed photo equipment at Cathy’s residence.
Ryan also testified that Cathy was ill with Lyme disease in 2014 and remained in bed when he
9 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
visited her over spring break. He observed that she had lost significant weight and was
lethargic. He and Castagna both helped Cathy with her day-to-day activities. Cathy informed
Ryan that Castagna was there to assist her.
¶ 21 Anthony testified, both on his own behalf and as an adverse witness, that he filed the
petition to terminate maintenance in March 2017 after having a conversation with Ryan after
Ryan returned from visiting Cathy over Christmas and after hiring a private investigator.
Anthony testified that he did not threaten Ryan or offer him money to obtain his affidavit.
Anthony admitted that he did not have any personal knowledge as to the allegations of
cohabitation in the petition.
¶ 22 Cathy testified, both on her own behalf and as an adverse witness, that she currently lived
on Catalina Avenue in Redondo Beach, California. Cathy admitted that she previously had a
four-year romantic relationship with Castagna, which began while she was still married to
Anthony. Cathy testified that she ended the relationship when she moved to California in 2011
and that she had romantic relationships with other men after her relationship with Castagna
had ended, including with a man named Patrick Naritel. However, during her deposition, Cathy
did not mention having been in a relationship with Naritel.
¶ 23 Cathy testified that, in April 2014, she was diagnosed with Lyme disease. Prior to her
diagnosis, she had also suffered from other ailments, including spinal meningitis, and had
surgery to have her colon resectioned. She had also suffered from sleep issues resulting from
post-traumatic stress disorder, which led to the prescription of powerful sleep medicine, which
she visited a treatment center to safely discontinue in March 2014. Cathy testified that her
health issues resulted in an inability to function. From June 2014 to December 2015, she lived
in a three-bedroom house on Steinhart Avenue in Redondo Beach, and had people “who helped
10 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
take care of me” staying at the house, including Castagna. Cathy testified that Castaga was not
a certified caretaker, but that he had caretaking experience from assisting his father, who
worked with handicapped children. Cathy could not afford a live-in caretaker, which would
have been “very, very expensive” and was not covered by her insurance. Cathy testified that
Castagna stayed in her home from June until September 2014, after which he rented his own
apartment before leaving California in March 2015. She did not compensate Castagna for his
caretaking services, but she paid for food and all of her expenses. In addition to Castagna, she
hired her dog walker to assist her on evenings or weekends when Castagna was not present. It
took until the summer of 2015 before Cathy was strong enough to no longer require a caretaker.
At the end of December 2015, she moved to an address on The Strand in Hermosa Beach,
where she lived for nine months before moving to her current residence. When Castagna
moved to California permanently, he moved into a different apartment in the same building. In
September 2016, Cathy moved into her current residence on Catalina Avenue. Cathy testified
that she was the only person listed on all of her leases and paid all of the bills.
¶ 24 Cathy testified that she had several businesses that all operated under the umbrella of
Catherine Grace O, LLC. She testified that she began with a blog in which she created
sponsored posts promoting brands. After some of those brands asked her to create video
content, she branched out to include a media production company. She also ran events and
operated a podcast and talk show. Cathy testified that she had 40 to 50 clients. Cathy further
testified that Castagna was the photographer for her business and also served as her business
manager. The business was operated out of her home, with an office and production studio set
up upstairs. The business originally had only Cathy and Castagna as partners, but now included
a third partner who owned a 10% share of the business. Cathy testified that her business filing
11 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
for her company listed the Catalina Avenue address for both her and Castagna, because it was
also the business address. Cathy testified that there was a subpoena in the instant litigation sent
to her home but addressed to Castagna, which she began signing for before she realized it was
not addressed to her, at which point she stopped.
¶ 25 Cathy testified that the business had a business bank account with Chase Bank and that
both her name and Castagna’s name were listed on the business account. She paid Castagna a
salary by writing checks from the business account unless she had cash flow issues, in which
case he did not get paid. Cathy testified that she also had personal bank accounts at Citibank,
North Shore Community Bank, and Chase Bank. She did not make any payments to Castagna
from those accounts, and he was never added to those accounts. Cathy also had a life insurance
policy, on which her children were the beneficiaries.
¶ 26 Cathy testified that she took business trips in connection with her business, and that
Castagna accompanied her on some of these trips. The trips were paid for through the business
account. Cathy testified that sometimes she and Castagna stayed in the same room, but in
separate beds. She had not taken any personal trips or vacations since January 2014.
¶ 27 Cathy denied that she attempted to pressure Ryan not to testify. Cathy further testified that
Ryan visited her over Christmas in 2016, but denied that Castagna was present the entire time,
as Ryan had claimed. However, during her deposition, Cathy had testified that Castagna was
present every day of Ryan’s visit, including on Christmas. Cathy testified that, at the time,
Castagna maintained a different residence approximately eight minutes away. Cathy testified
that Castagna slept at her home on Christmas because he had been drinking, and that he did
not own a vehicle; Cathy testified that she typically drove him. On occasion, Castagna would
drive Cathy’s vehicle for work; he also drove the vehicle once during Ryan’s visit when they
12 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
went out to eat. Cathy testified that when Castagna slept over during Christmas, he slept in her
room on an air mattress.
¶ 28 Cathy testified that Ryan came to visit her over Christmas in 2014 and that Castagna was
living with her at the time at an address on Steinhart Avenue in order to take care of her due to
her health issues. Cathy testified that she was worried that Ryan would inform Anthony of
Castagna’s presence.
¶ 29 Cathy testified that, in August 2016, she posted a birthday message for Castagna on
Facebook, consisting of a photo of Castagna and Cathy’s dog taken in Arizona in 2011 and a
caption referring to Castagna as “ ‘one of the most amazing men I have ever known.’ ”
¶ 30 Geoff Moore testified, on behalf of Cathy, that he had known Cathy since 2013, when they
had children in the same school in Winnetka. Moore testified that he had a romantic
relationship with Cathy in the summer of 2015 and again in November 2015, when Cathy
visited Chicago.
¶ 31 Jay Mitchell testified, on behalf of Cathy, that he owns and manages an apartment building
on The Strand in Hermosa Beach, California. Cathy rented an apartment in his building from
December 2015 until the fall of 2016. Castagna also rented an apartment in the same building,
beginning in December 2015, and currently remained a tenant. Mitchell testified that
Castagna’s apartment was a single-room, 200-square-foot apartment, and did not have a
shower within the apartment, but that there was a shower directly across the hall. Mitchell
issued one key per tenant, which could not be duplicated, and issued only one key to Cathy
and one key to Castagna. Mitchell testified that he had observed Castagna at the apartment
building, including in the evenings.
13 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
¶ 32 Castagna testified, on behalf of Cathy, that he and Cathy began dating after she filed her
petition for dissolution of marriage in 2007 and continued dating until early 2011. Castagna
learned that Cathy had been diagnosed with Lyme disease in May 2014, and traveled to
California to assist her. He had intended to be there only briefly, but Cathy began having daily
seizures and “was really incapable of doing anything for herself,” so he ended up staying off
and on through March 2015. At first, he stayed with her, but eventually, it grew too difficult,
so he moved to his own apartment and assisted Cathy during the day, while another friend
assisted during the night shifts. Castagna testified that he did not have any caretaking
experience.
¶ 33 Castagna testified that he moved back to California in 2015 after returning to Illinois and
he and Cathy decided to go into business together. Cathy’s business involved a great deal of
photography, which was expensive, so they decided that they would be able to save substantial
money if Castagna was able to take photos. Castagna testified that he and Cathy both had debit
cards for the business, but that neither had ever charged personal expenses to the business.
¶ 34 Castagna testified that one day in mid-February 2017, he was working alone in the office
in Cathy’s home, when someone knocked on the door. He looked out the side window and
observed “some guy fidgeting around in his pockets.” Castagna did not recognize him, and
testified that “he looked like somebody you really wouldn’t be trusting.” He opened the door
slightly and spoke with the man briefly, telling him that they had been there since September;
Castagna testified that “I meant we’ve been working there.”
¶ 35 Castagna testified that he had dated other women since moving to California and was
currently in a relationship with a woman named Karen.
14 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
¶ 36 After the parties rested, the attorneys presented closing arguments. At the beginning of his
closing, Anthony’s attorney stated:
“To go through what’s pending, your Honor, we have [Anthony’s] Petition to
Determine Cohabitation and to Terminate Maintenance filed March 7, 2017. This case
has been pending for over two years. We have [Anthony’s] Motion to Compel which
was filed earlier in this case and a court order continuing our fee request from that
granted motion to trial. We have [Anthony’s] [Second] Motion to Compel, again an
order continuing the sanction and fee request to trial. We have pending per your
Honor’s August 20th, 2018 court order pending potential sanctions against Cathy’s
attorneys. We also have the June 8th, 2018 order from your Honor *** stating that your
Honor may take a negative inference relating to Mr. Castagna. We, obviously, have our
Motions in Limine that were dealt with in part during this case.
And the final thing is our Petition for Contribution to Fees from Cathy.”
At the end of his closing, in setting forth the relief sought, Anthony’s attorney concluded:
“And the final request is sanctions and fees against Cathy and her attorney,
including discovery sanctions, a 508B finding against Cathy for unnecessarily
increasing fees and improper conduct, including intimidating our main witness and her
son, a 219C collusion with Mr. Castagna, improper filings, and under 508B, the fact
that we had to enforce the Judgment against her relating to this cohabitation.”
¶ 37 On June 4, 2019, the trial court entered a written order on Anthony’s petition to terminate
maintenance. The court found that Ryan testified “in a credible manner” as to Cathy and
Castagna’s living arrangements, and that there was “no question” that Cathy and Castagna
“have a very close permanent relationship.” The court further found that “Cathy was
15 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
impeached several times during her testimony and lied on several more occasions. She was not
credible.” The court found that “Cathy and [Castagna] have been in a very close relationship
in which they rely on each other, spend all their time together, comingle funds in their business
account, take many trips together and spend Christmases together.” The court summarized its
findings as follows:
“Examining the documents tendered in this matter as well as observing the demeanor
of the witnesses (including their attempts to avoid process), Cathy’s acts of tampering
with Ryan in an attempt to coerce him not to testify and [Castagna’s] attempts to impose
himself into the litigation through the pleadings, although only a witness, has convinced
the court that Cathy and [Castagna] have been residing together [on] a resident,
continuing conjugal basis.”
The court also specifically found that “Cathy was not credible and that Anthony and Ryan were
credible.”
¶ 38 Accordingly, the court ordered that Anthony’s obligation to pay maintenance to Cathy
terminated as of April 14, 2015, and ordered Cathy to repay any payments received from
Anthony after that date. The court also found that “Cathy is guilty of witness tampering.”
¶ 39 On July 12, 2019, in response to a motion to clarify and to enter judgment amount, the trial
court found that Anthony’s maintenance obligation terminated on December 29, 2015, and that
Cathy was required to reimburse Anthony $109,352 for maintenance paid after that date. The
court order provided that “[t]he June 4, 2019 Memorandum Order, as modified and clarified
herein, is now final.”
16 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
¶ 40 On August 14, 2019, in response to Anthony’s request for attorney fees, the trial court
entered an order requiring Cathy to contribute $93,000 toward Anthony’s attorney fees and
costs. In awarding the fees, the court found:
“Clearly [Cathy] was dishonest, was very abusive and intimidating of her son and,
quite frankly, I didn’t refer it to *** the State’s Attorney for criminal charges, which
were appropriate, because I was hopeful that they may be able to restore some kind of
relationship between the two of them.
But I think a mother should be encouraging the son to tell the truth and under oath,
rather than trying to keep him from testifying at all.
And I was very disappointed in her. I thought it showed a lack of character on her
part.
But I don’t know that I can punish her for her lack of character [and] dishonestly
[sic] in that area, but I do think that the case as it laid out was very clear that she was
cohabitating and did everything she could possibly come up with to delay the case and
to *** obfuscate the truth of the matter.
And so I do think that she needs to pay some of these fees.”
¶ 41 Cathy filed three separate notices of appeal: (1) appeal No. 1-19-1271 sought reversal of
the trial court’s June 4, 2019, order; (2) appeal No. 1-19-1646 sought reversal of the trial
court’s July 12, 2019, order; and (3) appeal No. 1-19-1766 sought reversal of the trial court’s
August 14, 2019, order. The three appeals were consolidated on September 24, 2019.
¶ 42 ANALYSIS
¶ 43 On appeal, Cathy claims (1) that the trial court erred in permitting Ryan to testify from his
affidavit, (2) that the trial court’s finding of cohabitation was against the manifest weight of
17 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
the evidence, (3) that the trial court’s finding of “witness tampering” was erroneous, and (4)
that the trial court erred in awarding Anthony attorney fees.
¶ 44 I. Motion to Dismiss Appeals
¶ 45 Prior to considering the merits of Cathy’s appeals, however, we must first discuss a motion
to dismiss the appeals filed by Anthony that we ordered taken with the case. Anthony claims
that, since the entry of the orders at issue on appeal, Cathy has been “flouting her obligations
under the orders of the trial court below, for which she has been found in contempt while
concealing herself in California.” Specifically, while Anthony admits that Cathy has satisfied
the portion of the judgment requiring her to reimburse Anthony $109,352 in maintenance
payments, Anthony claims that Cathy has not yet satisfied the portion of the judgment requiring
her to pay $93,000 for his attorney fees. Anthony claims that citation proceedings are ongoing,
and that Cathy has been found in contempt for failing to appear before the trial court in
connection with the proceedings, leading to a body attachment order. In her response to the
motion, Cathy claims that she is challenging the citation to discover assets due to improper
service, and that the proceedings before the trial court have been delayed due to the COVID-
19 pandemic and it is unclear when they will resume.
¶ 46 Anthony argues that we should dismiss the instant appeals pursuant to Garrett v. Garrett,
341 Ill. 232, 234 (1930), an Illinois Supreme Court case in which the court considered a
situation in which “a party adjudged in contempt of the trial court for failure to obey its orders
who has removed himself beyond its process and concealed himself outside the state of Illinois,
asks this court to entertain a new suit [citation] in which he attacks the final decree of the court
which he is defying.” The court dismissed the appeal, finding that “a party in contempt is not
entitled to prosecute or defend an action when the nature of his contempt is such as to hinder
18 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
and embarrass the due course of procedure in the cause.” Garrett, 341 Ill. at 234. However, we
find the situation present in case at bar to be unlike that in Garrett, or in In re Marriage of
Timke, 219 Ill. App. 3d 423 (1991), another case relied on by Anthony. 1 In both cases, the
party fled the jurisdiction in order to evade compliance with the court order. While in the case
at bar, Anthony claims that Cathy has similarly “concealed herself in California,” all
indications are that she is simply in her home, in a state in which she has lived for nearly a
decade and in the same place in which she resided throughout the litigation at issue. Anthony
has not shown any evidence to suggest that Cathy is intentionally concealing herself or has
otherwise evaded process. We further note that, while we take no position on the propriety of
any actions occurring after the filing of the notices of appeal in the instant case, the supporting
record submitted by Anthony in support of his motion to dismiss indicates that Cathy is
contending that she was not properly served with the citation to discover assets, which is a far
cry from fleeing to the Cayman Islands, as occurred in Timke. See Timke, 219 Ill. App. 3d at
425. Accordingly, we decline to dismiss Cathy’s appeals and proceed to consider the merits of
her arguments.
1 Anthony cites a third case in his motion: In re Marriage of Hill, 2015 IL App (2d) 140345. Anthony claims that, in that case, the Second District “dismissed an appeal because the husband had not only concealed himself beyond the court’s reach, but had also failed to pay child support and attorney’s fees payable to the wife, the very orders from which he had appealed.” However, Anthony’s position wholly misrepresents the holding in that case. While it appears that the original decision in Hill may have reached that conclusion, that decision was withdrawn and a new opinion was filed following a petition for rehearing. “It is well established that a withdrawn opinion has no precedential value because it does not express the views of the court.” People v. Jordan, 103 Ill. 2d 192, 205 (1984). There is no excuse for the citation of an opinion that was withdrawn five years ago, and we are deeply troubled by Anthony’s use of the case as though it remained good law and with no indication to this court of the subsequent history of the case. We strongly urge counsel to verify that cases used in arguments made to this court remain good law prior to citing them in the future. 19 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
¶ 47 II. Ryan’s Affidavit
¶ 48 Cathy’s first argument on appeal is that the trial court erred in permitting Ryan to “testify
from a script,” namely, from his affidavit, and that this error was so prejudicial to Cathy that it
requires a new trial. A trial court’s evidentiary ruling is a matter of discretion and will not be
reversed absent a clear abuse of discretion. In re Estate of Hoover, 155 Ill. 2d 402, 420. A trial
court abuses its discretion “only where no reasonable person could have agreed with the trial
court’s decision.” Werner v. Nebal, 377 Ill. App. 3d 447, 454 (2007) (Lawler v. MacDuff, 335
Ill. App. 3d 144, 147 (2002)). However, “[w]here a case is tried by the court without a jury, as
this one was, error in the admission of evidence is not grounds for reversal so long as there is
sufficient competent evidence fairly tending to support the trial court’s judgment.” Gunn v.
Sobucki, 216 Ill. 2d 602, 612-13 (2005). “A new trial should be ordered only when the evidence
improperly admitted appears to have affected the outcome of the trial.” Gunn, 216 Ill. 2d at
613.
¶ 49 In the case at bar, Cathy argues both that the affidavit should not have been admitted and
that Ryan should not have been permitted to use it during trial as a “script.” We address each
argument in turn. As an initial matter, Cathy claims that the “affidavit” was not actually an
affidavit at all. Our supreme court has explained that, under long-standing law, “ ‘[a]n affidavit
is simply a declaration, on oath, in writing, sworn to by a party before some person who has
authority under the law to administer oaths.’ ” Roth v. Illinois Farmers Insurance Co., 202 Ill.
2d 490, 493 (2002) (quoting Harris v. Lester, 80 Ill. 307, 311 (1875)). “[A]n affidavit must be
sworn to, and statements in a writing not sworn to before an authorized person cannot be
considered affidavits.” Roth, 202 Ill. 2d at 494.
20 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
¶ 50 In the case at bar, we agree with Cathy that Ryan’s “affidavit” is not an affidavit because
it was not sworn to before an authorized person. While the document states that it is “sworn”
in several areas, there is no indication that it was sworn to before an authorized person—there
is no notary stamp or other indication of the presence of an authorized person. See People v.
Tlatenchi, 391 Ill. App. 3d 705, 715 (2009) (holding that a proof of service signed only by the
defendant did not constitute an affidavit because it was not sworn to before an authorized
person). There is also no certification as permitted under section 1-109 of the Code of Civil
Procedure (735 ILCS 5/1-109 (West 2018)). Anthony contends that “[s]ince Ryan’s affidavit
was a recitation of his memory of events and recites that it was sworn under oath, it did not
require notarization to serve its intended purpose as an affidavit.” However, Anthony provides
no support for his suggestion that a “sworn witness statement” is somehow exempt from “the
traditional rule that notarization accompany an affidavit” (Roth, 202 Ill. 2d at 495).
Accordingly, we cannot find that Ryan’s “affidavit” was, in fact, an affidavit. 2
¶ 51 However, the label placed on the document does not determine whether it was admissible
or whether Ryan was permitted to use it during his testimony. Cathy contends that the
document constituted inadmissible hearsay and that the trial court erred in admitting it. Hearsay
is an out-of-court statement made by a declarant that is offered to prove the truth of the matter
asserted. Ill. R. Evid. 801(c) (eff. Oct. 15, 2015). Hearsay is generally inadmissible unless it
falls within an exception. People v. Lawler, 142 Ill. 2d 548, 557. Furthermore, the presence of
the declarant in court has no bearing on whether an out-of-court statement constitutes hearsay.
Lawler, 142 Ill. 2d at 557.
2 While this document does not satisfy the requirements of an affidavit, we nevertheless use the term to refer to it in our analysis, because that is the term used by the parties and by the trial court below. 21 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
¶ 52 In the case at bar, Anthony argues that there are several bases for admitting the affidavit.
First, Anthony claims that it was admissible as a prior consistent statement. “In general, proof
of a prior consistent statement made by a witness is inadmissible hearsay, which may not be
used to bolster a witness’s testimony.” People v. House, 377 Ill. App. 3d 9, 19 (2007).
However, there are two exceptions to this rule: (1) where a prior consistent statement rebuts a
charge that the witness was motivated to testify falsely or (2) where a prior consistent statement
rebuts an allegation of recent fabrication. House, 377 Ill. App. 3d at 19. In the case at bar,
Anthony claims that the first exception applies because Cathy suggested that Ryan was
motivated to testify falsely due to Anthony’s financial support. However, under the first
exception, the prior consistent statement is admissible “if it was made before the motive to
testify falsely came into existence.” House, 377 Ill. App. 3d at 19. See also Ill. R. Evid.
613(c)(ii) (eff. Oct. 15, 2015). Anthony does not explain how Ryan’s motivations changed
between the time of the affidavit (which is undated, but which testimony established was
created in 2017) and the time of the hearing on the petition, and we therefore cannot find that
Ryan’s affidavit would be admissible as a prior consistent statement.
¶ 53 Anthony also claims that the affidavit was admissible for the purpose of impeachment. A
witness may be impeached by any evidence that contradicts her or affects her credibility
adversely, so long as the impeachment is not on a collateral matter. Lakin v. Casey’s Retail
Co., 2018 IL App (5th) 170152, ¶ 62; People v. Abrams, 260 Ill. App. 3d 566, 579 (1994).
Anthony claims that the affidavit contradicted Cathy’s testimony concerning cohabitation and
therefore constituted proper impeachment evidence. We note that, as Cathy points out, Ryan’s
testimony, including the admission of the affidavit, was presented prior to Cathy’s testimony.
Thus, at the time that the document was admitted, there was not yet anything to “contradict.”
22 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
However, we agree with Anthony that this distinction is one without a real difference, as the
proceeding was a bench trial and the parties frequently scheduled the presentation of their
witnesses based on their availability. There was no question that Cathy was challenging
Anthony’s claims of cohabitation, so we can find no error in the trial court’s allowing the
affidavit prior to her testimony.
¶ 54 More problematic, though, is the way that the affidavit was used. While Anthony contends
that the affidavit was used only for purposes of impeachment, the trial court appears to
reference the affidavit in its order as substantive evidence. Specifically, the trial court found
that, “[i]n both testimony and via affidavit, Ryan indicated that [Castagna] had permanently
moved into Cathy’s residence, on or about January 1, 2015, and that they have been living
together since that time.” (Emphasis added.) If the affidavit was used as substantive evidence,
that was error. However, as noted, in a bench trial, “error in the admission of evidence is not
grounds for reversal so long as there is sufficient competent evidence fairly tending to support
the trial court’s judgment.” Gunn, 216 Ill. 2d at 612-13. In the case at bar, even if the affidavit
was used as substantive evidence, the presence of Ryan’s testimony, which related
substantially the same facts as contained in the affidavit, provides competent evidence to
support the trial court’s judgment. Accordingly, we cannot find that the admission of the
affidavit for purposes of impeachment was reversible error.
¶ 55 We next consider Cathy’s claim that Anthony’s counsel used the affidavit as a “script” to
shape Ryan’s testimony. While a witness may refer to documents to refresh his recollection
prior to testifying, the witness must then testify from his independent recollection. In re Estate
of Frakes, 2020 IL App (3d) 180649, ¶ 38. Cathy contends that the use of the affidavit resulted
23 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
in Ryan testifying from the affidavit, not from his own independent recollection. We do not
find this argument persuasive.
¶ 56 As an initial matter, Anthony first claims that Cathy has forfeited any challenge to the use
of the affidavit, because Cathy’s counsel affirmatively stated that he “[did not] have an
objection” when told that Anthony’s counsel had been “walking [Ryan] through the affidavit
the whole time.” Cathy, however, claims that the issue has been properly preserved because
Cathy’s counsel made a hearsay objection when Anthony’s counsel sought to admit the
affidavit into evidence, which was overruled, and it would have been futile to continue
objecting. See Spyrka v. County of Cook, 366 Ill. App. 3d 156, 165 (2006) (an objection need
not be repeated where the court has previously ruled). However, Cathy’s argument conflates
the objection to the admission of the affidavit into evidence with the use of the affidavit as part
of the process used in examining Ryan. Even if Cathy’s attorney objected to the admission of
the affidavit, he was still required to separately object if he believed that Anthony’s attorney
was attempting to use the affidavit for an improper purpose. See People v. Fretch, 2017 IL
App (2d) 151107, ¶ 86 (“Defendant’s objection to the admission of the other-acts evidence did
not relieve him of the responsibility of further objecting when he believed that the State was
making improper use of the evidence.” (Emphasis in original.)). His failure to do so has
forfeited the issue on appeal. See York v. El-Ganzouri, 353 Ill. App. 3d 1, 10 (2004) (“ ‘Where
a party fails to make an appropriate objection in the court below, he or she has failed to preserve
the question for review and the issue is waived.’ ” (quoting In re April C., 326 Ill. App. 3d 225,
242 (2001))).
¶ 57 Indeed, not only did Cathy’s counsel fail to object, but he affirmatively stated that he had
no objection to the use of Ryan’s affidavit in guiding Ryan’s examination. He cannot now
24 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
contest the admissibility of evidence he agreed to allow. During Ryan’s testimony, after Ryan
was asked a question about the contents of the affidavit, Cathy’s counsel interjected:
“CATHY’S ATTORNEY: I’m sorry. Is he reading from the affidavit?
ANTHONY’S ATTORNEY: I’ve been walking him through the affidavit the
CATHY’S ATTORNEY: Forget it. I don’t have an objection.” (Emphasis added.)
Thus, by affirmatively representing that he had no objection to Anthony’s counsel’s “walking
[Ryan] through the affidavit,” Cathy’s counsel consented to the process. “[A] party cannot
complain of error which that party induced the court to make or to which that party consented.”
In re Detention of Swope, 213 Ill. 2d 210, 217 (2004). Accordingly, we cannot find that Cathy
has preserved any objection to the use of Ryan’s affidavit.
¶ 58 Moreover, even if the issue had been properly preserved, we can find no error in the
approach taken by Anthony’s counsel. There is no dispute that Anthony’s counsel used the
affidavit to provide an outline for Ryan’s testimony—he even stated at the hearing that “I’ve
been walking him through the affidavit the whole time.” However, we cannot agree with
Cathy’s position that using the affidavit as an outline means that Ryan was testifying from a
“script.” The record shows that Anthony’s counsel would ask Ryan a question about a part of
the affidavit, and then examine the bases for Ryan’s answers and ask follow-up questions based
on Ryan’s testimony. For instance, the first time Ryan was asked about the contents of the
affidavit was in connection with a statement in the affidavit that Cathy asked Ryan to lie about
Castagna’s cohabitation. Anthony’s counsel followed up by asking Ryan several questions
about the timing and contents of the conversation. Similarly, when asked about a statement in
the affidavit claiming that Ryan witnessed Castagna living with Cathy during Ryan’s 2014
25 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
Christmas break, Ryan was also asked multiple follow-up questions about the trip, who was
present, and how often he observed Castagna at Cathy’s home. Anthony’s counsel used the
same approach with respect to a series of text messages between Ryan and Cathy—identified
the text message at issue, then asked follow-up questions about the circumstances behind the
message. There is no indication that Ryan’s testimony was not based on his independent
recollection, and, thus, even if the issue was not forfeited, we would not find that the trial court
abused its discretion by permitting Ryan to testify in this manner.
¶ 59 III. Finding of Cohabitation
¶ 60 Next, Cathy argues that the trial court erred in finding that she was cohabitating with
Castagna. Under the Illinois Marriage and Dissolution of Marriage Act (Marriage Act), “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). To prove the existence of a resident, continuing, conjugal relationship, the party
seeking to terminate maintenance “must show that the other is involved in a de facto husband
and wife relationship with a third party.” In re Marriage of Sunday, 354 Ill. App. 3d 184, 188-
89 (2004). “It is the burden of the party seeking termination of maintenance to demonstrate
that the former spouse is involved in a continuing, conjugal relationship.” In re Marriage of
Bates, 212 Ill. 2d 489, 524 (2004). The purpose underlying the termination of maintenance
upon cohabitation “is to remedy the inequity created when the recipient spouse becomes
involved in a husband-wife relationship but does not formalize the relationship, so that he or
she can continue to receive maintenance from his or her ex-spouse.” Sunday, 354 Ill. App. 3d
at 189 (citing In re Marriage of Arvin, 184 Ill. App. 3d 644, 649 (1989)). Each case rests on
its own set of facts, and “to preserve the primacy of the trial court’s position in finding those
26 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
unique facts, a court of review will not disturb the trial court’s determination concerning the
existence of a de facto husband-wife relationship unless that determination is contrary to the
manifest weight of the evidence.” Sunday, 354 Ill. App. 3d at 189. “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.” In re Marriage of Miller, 2015 IL
App (2d) 140530, ¶ 41.
¶ 61 To determine whether the spouse seeking to terminate maintenance has satisfied his
burden, we examine the totality of circumstances and consider six nonexhaustive 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. 3 In re Marriage of Walther,
2018 IL App (3d) 170289, ¶ 26; see also Miller, 2015 IL App (2d) 140530, ¶ 40; In re Marriage
of Thornton, 373 Ill. App. 3d 200, 209 (2007); Sunday, 354 Ill. App. 3d at 189; In re Marriage
of Snow, 322 Ill. App. 3d 953, 956 (2001). Examining these factors, we cannot find that the
trial court’s finding of cohabitation was against the manifest weight of the evidence. As there
is substantial overlap between the factors, we discuss them collectively instead of analyzing
them separately.
¶ 62 We first note that there is no dispute that Cathy and Castagna have a close relationship that
has spanned a number of years. The only dispute is whether that relationship is that of friends
3 While Anthony agrees that these six factors are the appropriate ones to consider, he appears to take issue with Cathy’s suggestions that the factors must be “weighed,” as set forth in Miller. It is unclear what purpose Anthony believes the factors should serve, if not to be weighed, especially given that several of the factors involve qualitative determinations and cannot be merely “checked off” a list. We also find curious Anthony’s contention that neither Miller nor Thornton are “[p]recedential,” as both cases remain good law—in fact, Anthony relied on Thornton in his closing argument, and the trial court quoted Miller in its order. 27 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
and business partners or of de facto spouses. Here, we cannot find that the trial court’s
conclusion of the latter was “unreasonable, arbitrary, or not based on the evidence.” Miller,
2015 IL App (2d) 140530, ¶ 41. The evidence showed that Cathy and Castagna have been in
some type of relationship since 2007, when they were involved in a romantic relationship.
While Cathy testified that the romantic aspect of their relationship ended in 2011, the trial court
did not find her testimony credible. By contrast, Ryan testified that, on his visits, he observed
Cathy and Castagna sharing a bedroom, which he further testified contained only one bed. Text
messages between Cathy and Ryan also often referenced Castagna’s presence, such as
comments about his driving her to the doctor or purchasing plane tickets. Castagna was also
present during Ryan’s visits over Christmas, including exchanging Christmas gifts on at least
one occasion. Castagna also told Goodman, the private investigator, that “ ‘[w]e’ve been living
here since September’ ” when Goodman knocked on the door of Cathy’s residence.
¶ 63 There is also no dispute that they spend a great deal of time together. While Ryan testified
that Castagna was always present during his visits, even Cathy’s and Castagna’s testimony
showed that they were often together (albeit for different reasons). They maintained apartments
in the same apartment building for a time, with Castagna occupying an apartment so small that
it did not even contain a shower. They also traveled together, sometimes staying in the same
hotel room, and Castagna testified that both had business debit cards and paid for business
expenses from the same account. While Cathy testified that all of their activities were based
around their business, the trial court was not required to credit her testimony, and we will not
overturn a factfinder’s credibility determination. See Miller, 2015 IL App (2d) 140530, ¶ 41
(“As a general rule, we will not disturb a trial court’s credibility determination.” (citing
Eychaner v. Gross, 202 Ill. 2d 228, 251 (2002))). The trial court also pointed to the fact that
28 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
Castagna had no experience as a photographer when Cathy hired him (and had no experience
as a caretaker when Cathy claimed he was caring for her), and that Castagna was not earning
a salary from the business, despite the business’ revenue increasing each year. Additionally,
Ryan testified that he believed that Cathy was financially supporting Castagna “[b]ecause I
believe she basically told me that. It was kind of a known thing between my sister and I, that
that was the case.”
¶ 64 We must also note that the trial court expressly noted that it based its findings, in part, on
the conduct of Cathy and Castagna in relation to the court proceedings at issue. The court
pointed to a subpoena for deposition that was sent to Castagna at Cathy’s address, which Cathy
signed for; Cathy contended that she had stopped signing when she discovered that it was not
addressed to her, but the trial court expressly found that “[t]his was not true” and that Cathy
had signed the green card, which is used for the acknowledgment of certified mail. Castagna
then used the allegedly improper service to refuse to appear for a deposition. The court
additionally noted that Castagna had filed multiple motions in the instant litigation as an
“attempt[ ] to insert himself into the litigation.” The court also noted that Cathy had attempted
to intimidate Ryan to coerce him not to testify, and had previously asked him not to inform
Anthony about Castagna’s presence. Given all of the evidence presented at the hearing, as well
as the trial court’s credibility determinations, we cannot find that it was against the manifest
weight of the evidence for the court to find that Cathy and Castagna were cohabitating on a
resident, continuing, conjugal basis.
¶ 65 IV. Witness Tampering
¶ 66 Next, Cathy argues that the trial court’s finding that “Cathy is guilty of witness tampering”
was void because Cathy had no notice that such an issue would be considered by the court. “A
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party cannot be granted relief in the absence of corresponding pleadings; if a justiciable issue
is not presented to the court through proper pleadings, the court cannot sua sponte adjudicate
an issue.” Suriano v. Lafeber, 386 Ill. App. 3d 490, 492 (2008) (citing Ligon v. Williams, 264
Ill. App. 3d 701, 707 (1994)). Any such order entered by the court is void, as the court has
exceeded its jurisdiction. Suriano, 386 Ill. App. 3d at 492.
¶ 67 In the case at bar, however, there was a pleading before the court at the time of the hearing
that concerned Cathy’s alleged intimidation of Ryan. On February 7, 2018, Anthony had filed
a motion seeking sanctions against Cathy for intimidating and harassing Ryan. On April 24,
2018, the trial court entered an order providing, in relevant part, that “[a] determination of
whether sanctions will be issued in connection with each count of Anthony’s [motion] is
hereby reserved until final hearing on Anthony’s Petition to Terminate or Modify Maintenance
and for Other Relief.” During the hearing on the petition to terminate maintenance, Anthony’s
counsel specifically referenced this motion in his closing argument as one that was before the
court. We thus cannot find that the trial court improperly entered a finding that Cathy was
“guilty of witness tampering.”
¶ 68 We note that, in her petition for rehearing, Cathy expresses the belief that this finding
results in a criminal conviction against her, which she contends violates her constitutional
rights. However, although the court’s choice of words could have been better, it is clear that
the court was imposing a sanction, not finding Cathy guilty of a crime, and we cannot find that
the imposition of such a sanction exceeded the court’s jurisdiction.
¶ 69 V. Attorney Fees
¶ 70 Finally, Cathy contends that the trial court erred in granting Anthony attorney fees.
Attorney fee awards under section 508 of the Marriage Act, as occurred in the case at bar, are
30 Nos. 1-19-1271, 1-19-1646, 1-19-1766 (cons.)
reviewed for an abuse of discretion. In re Marriage of Patel, 2013 IL App (1st) 112571, ¶ 67;
In re Marriage of Schneider, 214 Ill. 2d 152, 174 (2005). “A trial court abuses its discretion
only where no reasonable person would take the view adopted by the trial court.” Schneider,
214 Ill. 2d at 173.
¶ 71 In the case at bar, the trial court awarded fees pursuant to section 508(b) of the Marriage
Act, which provides:
“In every proceeding for the enforcement of an order or judgment when the court finds
that the failure to comply with the order or judgment was without compelling cause or
justification, the court shall order the party against whom the proceeding is brought to
pay promptly the costs and reasonable attorney’s fees of the prevailing party. If non-
compliance is with respect to a discovery order, the non-compliance is presumptively
without compelling cause or justification, and the presumption may only be rebutted
by clear and convincing evidence. If at any time a court finds that a hearing under this
Act was precipitated or conducted for any improper purpose, the court shall allocate
fees and costs of all parties for the hearing to the party or counsel found to have acted
improperly. Improper purposes include, but are not limited to, harassment, unnecessary
delay, or other acts needlessly increasing the cost of litigation.” 750 ILCS 5/508(b)
(West 2016).
¶ 72 In the case at bar, the hearing on Anthony’s petition to terminate maintenance was a
“hearing under this Act,” and the trial court specifically found that Cathy “did everything she
could possibly come up with to delay the case and to *** obfuscate the truth of the matter,”
which constitute “[i]mproper purposes” under section 508(b). Accordingly, we cannot find that
the trial court abused its discretion in awarding Anthony attorney fees.
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¶ 73 We are unpersuaded by Cathy’s argument that attorney fees are only permissible in a
proceeding “for the enforcement of an order or judgment,” as stated in the first sentence of
section 508(b). We note that the language of the last sentence is broader, referring to “a hearing
under this Act,” so it is not clear that attorney fees are only appropriate in enforcement
proceedings. However, we have no need to resolve this question because the prohibition
against cohabitation is expressly incorporated into the parties’ agreement concerning
maintenance. Specifically, a January 13, 2015, agreed order modified the parties’ marital
settlement agreement to provide that Anthony’s maintenance payments “shall forever
terminate immediately upon” Cathy’s cohabitation as found by a trial court. Accordingly, even
if section 508(b) requires the proceeding to be one “for the enforcement of an order or
judgment,” the proceeding at issue in the case at bar would satisfy that standard.
¶ 74 CONCLUSION
¶ 75 For the reasons set forth above, we affirm the trial court’s judgment. First, while Ryan’s
“affidavit” was admissible only for impeachment purposes, any substantive use of the
document did not constitute reversible error where his testimony established the same facts.
Second, Cathy has forfeited her arguments as to the use of the document as an outline to Ryan’s
testimony and, even if she had not, its use was not error, where Ryan testified pursuant to his
independent recollection, and not according to a “script.” Third, the trial court’s finding that
Cathy and Castagna were cohabitating on a resident, continuing, conjugal basis was not against
the manifest weight of the evidence. Fourth, the trial court did not act outside the scope of its
jurisdiction by finding Cathy “guilty of witness tampering.” Fifth, the trial court did not err in
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awarding Anthony attorney fees where the court found that Cathy had engaged in delay and
obfuscation.
¶ 76 Affirmed.
Related
Cite This Page — Counsel Stack
2020 IL App (1st) 191271-U, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-mccormick-illappct-2020.