In re Marriage of Oberweis

• Court: Appellate Court of Illinois
• Decided: June 10, 2026
• Docket: 2-24-0705
• Status: Published

Opinion

2026 IL App (2d) 240705 No. 2-24-0705 Order filed June 10, 2026

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

In re MARRIAGE OF JENNIFER L. OBERWEIS, n/k/a Jennifer L. Hartman, Petitioner-Appellant and Cross-Appellee,

and

JOSEPH S. OBERWEIS, Respondent-Appellee and Cross-Appellant.

Appeal from the Circuit Court of Kane County. Honorable Bradley P. David, Judge, Presiding. No. 17-D-1337

PRESIDING JUSTICE KENNEDY delivered the judgment of the court. Justices McLaren and Schostok concurred in the judgment.

ORDER

¶1 Held: The trial court properly interpreted and applied the relevant terms of the parties’ marital settlement agreement. The manifest weight of the evidence supports the court’s finding that petitioner was cohabiting and that the relationship demonstrated a de facto marriage. This conclusion renders moot respondent’s cross-appeal challenging a discovery ruling below. Finally, the court did not abuse its discretion when it denied respondent’s motion to modify maintenance. We therefore affirm the court’s judgment.

¶2 In this postdecree proceeding, petitioner, Jennifer L. Oberweis, n/k/a Jennifer L. Hartman,

appeals from the trial court’s declaratory judgment finding in favor of respondent, Joseph S.

Oberweis, and against her. The court found that Jennifer was cohabiting and involved in a de facto marriage, which warranted a reduction of maintenance pursuant to the parties’ marital settlement

agreement (MSA). Jennifer argues on appeal that the court erred because it utilized an analysis to

find cohabitation disparate from the terms in the MSA. On cross-appeal, Joseph argues that the

court erred when it allowed Jennifer to redact certain text messages during discovery proceedings

and denied his motion to modify maintenance based on a substantial change in his financial

circumstances.

¶3 We affirm the trial court’s declaratory judgment finding in favor of Joseph and against

Jennifer. Our decision renders moot Joseph’s claim of error regarding the redaction of Jennifer’s

text messages. We affirm the court’s decision to deny Joseph’s motion to modify maintenance.

¶4 I. BACKGROUND

¶5 Jennifer and Joseph were married on July 21, 2001, and divorced by entry of a judgment

for dissolution of marriage incorporating the MSA on May 10, 2018. During the marriage, the

parties had five children together. At the time of the divorce, Joseph served as the CEO of Oberweis

Dairy, Inc., earning an annual gross income of $475,000. Jennifer was not working at the time of

the divorce, but since then has completed a master’s degree in social work and is now employed

as a hospice social worker, earning a salary of $70,000 per year.

¶6 Under the MSA, the parties had agreed to maintenance payments to Jennifer in the amount

of $13,000 per month, in addition to 30% of any cash distributions or bonuses received by Joseph.

Maintenance payments began on May 6, 2018, and are scheduled to cease on May 6, 2029, “unless

terminated prior thereto or modified pursuant to Paragraph 2.9,” which states that maintenance

“shall be modifiable” pursuant to section 510 of the Illinois Marriage and Dissolution of Marriage

Act (Act) (750 ILCS 5/510 (West 2018)). Paragraph 2.6 of the MSA provides that, “[b]ased on the

substantial amount of maintenance paid under this agreement, JOSEPH’S obligation to pay child

-2- support to JENNIFER shall be reserved.” Paragraph 2.7 of the MSA states that any income earned

by Jennifer “shall not serve as a basis to modify maintenance under Article II of this Agreement.”

¶7 Pertinent to this appeal, paragraph 2.11 of the MSA begins:

“JENNIFER’S remarriage or cohabitation on a continuing conjugal basis (not a dating

relationship but actual physical, residential cohabitation consisting of a combination of

households, along with any other factors then existing at law) shall not serve as a

terminating event.”

¶8 The same paragraph of the MSA then provides a formula for modifying the maintenance

payments to Jennifer if she were found to cohabit with a new significant other, for example,

reducing maintenance “by fifty percent (50%) of [the] cohabitant’s highest annual income (on a

calendar year basis) during the period that begins on January 1 of the year that includes the date

five (5) years prior to the marriage or commencement of cohabitation and including each year

thereafter.” Paragraph 2.11 also lists a schedule of minimum maintenance payments to be

calculated depending on the cohabitant’s income.

¶9 On October 20, 2021, Joseph filed a motion for declaratory judgment, arguing that Jennifer

was cohabiting with her boyfriend, Shawn Hanke, thereby triggering the modification of

maintenance in paragraph 2.11 of the MSA. He sought a declaration from the trial court that

Jennifer was cohabiting with Hanke, a finding regarding Hanke’s income from the previous five

years, and an appropriate calculation under the MSA for the modified maintenance payment

amount.

¶ 10 On June 16, 2023, Joseph filed a motion to modify maintenance and for other relief. He

asserted that a substantial change in circumstances had occurred, wherein his salary had been

involuntarily reduced from $429,000 annually to $300,000 annually. He stated in his motion that

-3- he was seeking alternative employment but noted that “there may be a lengthy period of

unemployment before [he] is able to find and obtain comparable employment.” He sought to

terminate the maintenance obligation owed to Jennifer as provided in the MSA and enter a child

support obligation pursuant to statutory guidelines. The trial court took Joseph’s motion to modify

maintenance under advisement pending trial on his motion for declaratory judgment.

¶ 11 This matter proceeded to a three-week intermittent trial on February 5, 2024, wherein

Hanke testified regarding his relationship with Jennifer. He met Jennifer in 2017 while playing an

online game application. At that time, he resided in Colorado. Hanke first met Jennifer in person

in September 2017, when he surprised her in Las Vegas while she was on a trip with a girlfriend.

He and Jennifer shared physical intimacy for the first time during that trip.

¶ 12 Hanke began to visit Jennifer in Illinois beginning in March 2018. During his visits with

Jennifer, he stayed at her house. He met Jennifer’s children in July of 2018 on a camping trip. At

that time, he texted and spoke to Jennifer on the phone daily. Hanke returned to visit Jennifer in

November 2018, staying with her for about a week. Jennifer visited Hanke in Colorado on New

Year’s Eve that year. He returned to Illinois to visit Jennifer in April 2019 and celebrated the

birthday of one of the parties’ children. He stated that it was his custom and practice to celebrate

birthdays with the children.

¶ 13 Hanke returned to Illinois in June or July 2019, and he traveled with Jennifer, the children,

and Jennifer’s mother to Sanibel Island, Florida, for a two-week vacation. Jennifer paid for

Hanke’s airfare, while Hanke paid for food and some transportation. Jennifer paid for the rental

house. He visited Illinois in October 2019 to go trick-or-treating on Halloween with Jennifer and

the children and returned for another visit in December 2019 for Christmas. He stayed with

Jennifer for a week to 10 days during the Christmas holiday.

-4- ¶ 14 Hanke testified that, beginning in 2019, on certain occasions, Jennifer would attend out-

of-state dance competitions with one of her children while he would stay at her house and watch

the other children. He had no knowledge as to why he stayed with the children instead of Joseph.

He acknowledged that he would care for and feed the children when Jennifer was away from home.

Jennifer and Hanke continued to visit each other in 2020.

¶ 15 Hanke moved to Illinois from Colorado in February 2021. He testified that he moved to

Illinois to prove his commitment to Jennifer. At the time of his move, Jennifer had undergone

surgery and he stayed at her home for three weeks to help her recuperate. Afterwards, he moved

in with Jennifer’s mother, where he resided for about eight or nine months. He had signed a lease

agreement with Jennifer’s mother, a copy of which was admitted into evidence without objection.

Then, he rented a room at a communal house in Aurora but could not recall the names of

roommates with whom he shared the room. Hanke stated he did not know who else lived there

“[b]ecause we all keep different hours.” He renewed the six-month lease four times and a copy of

the lease from the communal house was admitted into evidence without objection. He described

the residence as “a room upstairs” with “multiple other rooms where other folks rent.” He had

access to a shared laundry room, television, and bathroom.

¶ 16 In June 2021, Hanke traveled to Disney World with Jennifer, his son, her children, and

Jennifer’s mother. Also during that summer, Hanke, Jennifer, her children, and Jennifer’s family

members traveled to Branson, Missouri, and Pensacola, Florida. Jennifer paid for the airfare.

¶ 17 In November 2021, Jennifer’s mother passed away and Hanke attended the funeral with

her. He stood in the family receiving line with Jennifer. Hanke’s name was listed in the funeral

program in brackets after Jennifer’s name.

-5- ¶ 18 Hanke traveled with Jennifer to Jamaica and Niagara Falls in 2022. She paid for the airfare

and hotel. Hanke attended Jennifer’s graduation party in May 2022 and was also present for

Mother’s Day. He testified that he celebrated holidays with Jennifer, including Easter, Labor Day,

Halloween, Thanksgiving, and Christmas. He also attended a number of celebrations with the

children, including a graduation party.

¶ 19 In January 2023, Hanke, Jennifer, and her children flew to Colorado for a celebration of

Hanke’s father’s life. Hanke, Jennifer, and her children went on a cruise during the summer of

2023, for which Jennifer had paid.

¶ 20 Hanke testified that he spoke about his experiences as an Air Force veteran at the children’s

school. He stated that he does his laundry at Jennifer’s house, but not on a regular basis. He keeps

his cats at Jennifer’s house but pays the expenses to care for the cats. Hanke stated that he keeps

his video game console at Jennifer’s house because the children enjoy using it. He stays at

Jennifer’s house 30 to 40 percent of the time, including overnights, but most of the time, the

children are not at the house when he stays there.

¶ 21 Hanke testified that he plays board games with the children, helps them with their

homework, administers medicine to them with Jennifer’s authorization, and takes them to their

activities when Jennifer is not present. He also volunteered for events at the children’s school and

helped them with school projects. Counsel for Joseph presented Hanke with a number of

photographs depicting him with Jennifer’s children, some of which were admitted into evidence

without objection and some admitted over objection. Some of the photographs depicted Hanke

attending school events with the children, including prom. Hanke testified that he took the children

to various appointments. In addition, he stated that he had instructed Jennifer to insult Joseph in

front of the children “so much that his own kids hate him.”

-6- ¶ 22 Hanke testified that he tells Jennifer that he loves her and he refers to her father as “dad.”

He also described a necklace that he gave to Jennifer for Christmas that had a charm on it stating,

“Forever and Always.”

¶ 23 Hanke stated that he paid his own rent and did not contribute to paying Jennifer’s mortgage.

He testified at length regarding his separate finances from Jennifer’s. He stated that he does not

plan to either propose to Jennifer or to reside with her. To his knowledge, he is not legally divorced

from his current wife. He considers himself to be a Colorado resident. He clarified that while

Jennifer had paid for flights, he had reimbursed her for other travel expenses. He stated that when

he is invited to go on a trip with her, he pays for certain things, including food, but pays her in cash

for his portion of the vacation “just to help pay because I don’t want her paying for me.” He stated

that he always reimburses her for trips. He testified that he was unaware of the amounts of

Jennifer’s expenses for her mortgage, her vehicle, or the children.

¶ 24 Jennifer testified that she resides in a home with her five children and is employed as a

hospice social worker, earning $70,000 per year. She completed a master’s degree in social work

in May 2022, following her divorce from Joseph. She pays for the mortgage, property taxes,

groceries, pet care, and other bills every month. When Hanke joins her and the children on a

vacation, he reimburses her for his portion of the trip.

¶ 25 Jennifer stated that Hanke is a good role model for her children and that if he were no

longer in her children’s lives, they would miss him. She has been in an exclusive relationship with

Hanke since 2018. Hanke did not physically move into Jennifer’s home and she does not plan to

combine her household with Hanke.

¶ 26 Jennifer next testified regarding Hanke’s relationship with her children. She permitted

Hanke to participate extensively in the children’s school events and activities. He served as an

-7- emergency contact at the children’s school, but Jennifer explained that she used his name because

her mother was too ill at that point to serve as an emergency contact. Jennifer stated that Hanke

was listed on a website that allowed him to review her children’s artwork online. Hanke bought

presents for the children and attended their birthday celebrations. Hanke attended all the holidays

celebrated at Jennifer’s home since he moved to Illinois in 2021. He also attended out-of-state

competition events involving the children and cared for the children who were not competing.

¶ 27 Hanke resided as a tenant at Jennifer’s mother’s house until she passed away in November

2021. Jennifer stated that Hanke stood in the receiving line with her at her mother’s funeral. She

agreed that her mother’s obituary listed Hanke’s name next to hers in brackets and that she had

personally approved Hanke’s name to be included next to hers in the obituary. An exhibit depicting

a copy of the obituary was admitted into evidence over objection. Hanke was also listed as a

“family mourner” on the funeral service’s brochure, although Jennifer stated that she “didn’t know

his name was going to be on there.” Jennifer testified that she had attended the life celebration for

Hanke’s father in Colorado in January 2023.

¶ 28 Jennifer testified that she had loaned money to Hanke to help him pay his bills. When

Jennifer and Hanke travel together on vacation, he reimburses her in cash for his travel expenses.

She stated that, sometimes when she was not present, Hanke used her credit card to purchase items

for her children. She does not share bank accounts, investment accounts, or credit card accounts

with Hanke.

¶ 29 Jennifer asked Hanke to move to Illinois to be with her. Hanke sold his house in Colorado

to move to Illinois. Jennifer asked her neighbor if Hanke could park his truck in her driveway and

on numerous occasions, he parked his truck there. Hanke has access to Jennifer’s home by using

the code to the garage door. Hanke does not pay Jennifer to board his cats at her home. Hanke does

-8- his laundry occasionally at her home. When Hanke stays at her house overnight, he brings his own

clothes and a toiletry kit and takes it with him when he leaves. He would stay at Jennifer’s home

when the children were not there.

¶ 30 Next, Jennifer testified about the inclusion of Hanke on her social media pages, which

included various profile pictures of her and Hanke together, along with pictures of him and the

children together at various events, birthdays, holidays, and vacations. A large number of exhibits

depicting these pictures and social media posts were admitted into evidence without objection and

over objection, and the trial court sustained some of the objections to preclude commentary or

narratives appearing underneath the photographs or in posts.

¶ 31 Finally, Jennifer testified regarding a text message exchanged between herself and Joseph

from November 20, 2018, in which she stated, “even when [Hanke] moves out here he and I won’t

be [‘]Living Together[’] for 11 years, sorry Charlie.” Jennifer stated that she sent Joseph that text

in response to him saying “he wished that [Hanke] and I would move in together with a dollar sign

behind it.” Counsel for Joseph moved to admit the exhibit containing the text message into

evidence, which was admitted without objection.

¶ 32 Jacob Osojnak, a private detective, testified that Joseph retained him to conduct a

cohabitation investigation, which involved physical surveillance to determine whether a person is

staying at another party’s residence. He completed four investigative reports beginning in October

2021 through February 2022 and testified regarding the number of times he observed Hanke’s

truck parked in Jennifer’s driveway during his surveillance. Osojnak testified that his investigation

required surveilling whether the subject vehicle was located at Jennifer’s residence. He was not

specifically surveilling Hanke and could not provide a description of him. Osojnak also was

unaware if Jennifer was at home during any of the drive-by surveillance he conducted for the

-9- investigation. Osojnak had no independent information regarding who was at the home during any

of the periods of his surveillance. He had no evidence as to whether Hanke resided at Jennifer’s

residence other than observing Hanke’s vehicle parked there.

¶ 33 Joseph testified that Hanke was “always there,” referring to the children’s events or

activities. Joseph described other events involving his children where Hanke attended but Jennifer

did not. He stated that he observed Hanke’s truck “regularly parked in [Jennifer’s] driveway.”

¶ 34 Joseph testified that he was no longer employed, but that his current source of income was

derived from investments. His financial affidavit, which was admitted into evidence without

objection, reflected that, despite his unemployment, he received a dividend income of $3,500 per

month and investment income of $8,000 per month. He formerly served as the CEO of Oberweis

Dairy but resigned from his position on June 7, 2023. He owned a 30% to 35% share of the

company in 2019. At the end of 2022, he sold his shares of stock in Oberweis Dairy to his siblings

for a little less than $2 million, which provides the source of his dividend and interest income. He

still owns approximately a 20% share of stock in the family’s parent company. Joseph began to

look for employment immediately after resigning from the family business. He stated that he has

not rejected any positions since leaving Oberweis Dairy and has not received any offers for

employment. He described in detail his attempts to secure employment.

¶ 35 According to Joseph’s financial affidavit, he estimated his total monthly living expenses to

be $26,180 per month, not including the maintenance he pays monthly to Jennifer. When he

resigned from his CEO position at Oberweis Dairy in July 2023, he was aware that he could be

unemployed for about two years. He testified that, despite his unemployment, he had scheduled a

vacation to Mexico, booking airfare totaling $8,000 and renting a house for $14,000, including an

on-site chef. He stated that he did not reduce his spending on vacations “to take advantage of the

- 10 - opportunity with my kids. But on other expenses I think we are.” He also planned upcoming trips

to Washington, D.C. and Hawaii. He continued to pay his credit card bills in their entirety every

month, including more than $30,000 in August 2023. In addition, he pays his legal representation

$20,000 per month. He provides a monthly stipend of $3,500 to his current wife for personal use.

¶ 36 Joseph testified that, since his unemployment, he has not missed any mortgage payments,

maintenance payments, or credit card payments. He stated that if a financial opportunity arose to

purchase some assets of Oberweis Dairy in a distress sale, he would work with an investor group

to buy the assets. For example, he had considered investing between $500,000 and $1 million of

his own money to purchase some of the Oberweis Ice Cream and Dairy stores with his father.

Joseph stated that, ultimately, he could rely on his assets to support himself and his family until he

could find employment.

¶ 37 On July 24, 2024, the trial court granted a declaratory judgment in favor of Joseph and

against Jennifer. The court entered a detailed, written order finding that Jennifer and Hanke were

cohabiting under section 510(c) of the Act and had been involved in a de facto marriage since

November 2021, when Jennifer had approved the inclusion of Hanke’s name in her mother’s

obituary. 750 ILCS 5/510(c) (West 2018). The court considered at length whether Jennifer and

Hanke were involved in a de facto marriage rather than an intimate dating relationship based on

the totality of the circumstances of their relationship.

¶ 38 The trial court found “a 6-year monogamous relationship to be more akin to a de facto

marriage than an intimate dating relationship,” but placed little weight on this factor alone. Instead,

the gravamen of the court’s conclusion focused upon Hanke’s relationship with Jennifer’s children,

finding that, although he could “easily be financially segregated [from Jennifer], it is abundantly

clear that [the] children cannot be emotionally segregated without drastic consequences to

- 11 - everyone involved.” The court stated that Jennifer significantly downplayed Hanke’s importance

to her children when she testified that “ ‘they might miss him but they would move on’ ” when

asked if it would be harmful to the children if Hanke was not in their lives. The court then listed

21 different examples of Hanke’s involvement with the children, along with a discussion of text

messages replete with communications rendering the “obvious” conclusion that she had vested

Hanke with a caretaking role for her children. The court stated that “Jennifer, by way of allowing

[Hanke] to participate so frequently and intimately in the lives of her children, has demonstrated

that she is fully committed to her relationship with [Hanke] and intends it to be permanent,

regardless of whether she actually intends on being married to him.” Hanke’s caretaking role of

Jennifer’s children weighed strongly in favor of the court’s finding of a de facto marriage.

¶ 39 In addition, the trial court found that Jennifer’s listing of Hanke’s name in her mother’s

obituary weighed strongly in favor of a de facto marriage and further supported Jennifer’s belief

in the permanence of the relationship. The court also considered communications between Jennifer

and Hanke that demonstrated the permanence of, and mutual commitment to, their relationship.

The court noted how the parties frequently texted and expressed their love back and forth,

including a message that Hanke sent to Jennifer stating, “I just wanted to tell you that I am so

thankful you are in my life.” Jennifer responded, “If you were not in my life then [sic] I wouldn’t

want to exist anymore.”

¶ 40 The trial court found that November 2021 was the appropriate date reflecting the beginning

of Jennifer and Hanke’s de facto marriage because it was “the first time that Jennifer publicly

published her relationship with [Hanke] to the outside world in such a manner for the Court to be

able to find her in a de facto marriage.” Based on the finding of cohabitation, the court

implemented the maintenance modification formula provided in paragraph 2.11 of the MSA.

- 12 - ¶ 41 The trial court considered evidence of Hanke’s and Joseph’s income when calculating the

modified amount of maintenance. After recounting in great detail Joseph’s financial history, the

court concluded that he had “not modified his lifestyle since the reduction or the elimination of his

salary from the corporation” and had “not reduced any of his monthly expenditures since resigning

from his position.” The court noted that Joseph remained able to pay all his credit cards on a

monthly basis, “even with the significant amounts of attorneys’ fees that have been incurred in the

present litigation.” In addition, Joseph “continued to take lavish vacations and his new wife, who

plans the family vacations, has not been given any constraints or restrictions on her planning

activities.” The court also noted that Joseph “still provides his new wife with $3,500 per month to

cover her personal expenses and there was no evidence that he asked her to reduce those.” The

court concluded that Joseph had “substantial assets and is well-able to continue paying his

maintenance obligation to Jennifer and to contribute to the child-related expenses as previously

ordered, in spite of the loss of income.” As a result, the court denied Joseph’s motion to modify

maintenance and for other relief.

¶ 42 The trial court reduced Joseph’s maintenance obligation to $98,700 per year, or $8,225 per

month, effective November 1, 2021. The court found that, because Joseph had paid $13,000 per

month in maintenance until the date of its finding, Joseph’s reduced obligation had resulted in an

overpayment of $157,575. To offset the overpayment, the court ordered a reduction of Joseph’s

monthly maintenance payments to Jennifer by $2,764.47 per month for the next 57 months. In

sum, the court ordered Joseph to pay Jennifer $5,460.53 per month for the remainder of the

maintenance period.

¶ 43 On August 23, 2024, Jennifer moved to reconsider the trial court’s decision, arguing that

the court improperly interpreted the MSA when it modified maintenance by using a totality of the

- 13 - circumstances analysis without making an actual finding that she was cohabiting with Hanke as

provided in paragraph 2.11 of the MSA. After hearing the parties’ arguments, the court denied

Jennifer’s motion. Initially, the court acknowledged that paragraph 2.11 of the MSA contains

“various clauses, definitions, [and] modifications.” The court stated that paragraph 2.11 of the

MSA was not a simple provision to interpret and required consideration of certain factors to

determine whether a de facto marriage existed. The court also specifically found that paragraph

2.11 was not vague. The court concluded that “if the factors for a de facto marriage don’t exist in

this case, I’m not sure when they ever would, quite frankly.”

¶ 44 On November 19, 2024, the trial court entered an agreed order containing a special finding

pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). Jennifer timely appealed the

court’s declaratory judgment finding of cohabitation. Joseph filed a timely cross-appeal

challenging the denial of his motion to modify maintenance and seeking reversal of the court’s

entry of a protective order allowing Jennifer to redact text messages.

¶ 45 II. ANALYSIS

¶ 46 On appeal, Jennifer argues that the trial court erred when it found cohabitation based on a

totality of the circumstances without also finding that she was cohabiting with Hanke specifically

based on having “actual, physical, residential cohabitation consisting of a combination of

households,” as provided in paragraph 2.11 of the MSA. Jennifer contends that the parties

contracted such that cohabitation must have a physical residential component and, because she and

Hanke did not reside together, the cohabitation finding under paragraph 2.11 of the MSA was

incorrect. She maintains that the parties explicitly defined cohabitation to consist of a combination

of households, meaning, joining her home and household with Hanke. Jennifer argues that without

- 14 - a finding consistent with the definition of cohabitation in the parties’ MSA, a modification cannot

be triggered.

¶ 47 Joseph responds that the evidence presented at trial supported the ultimate finding that a

de facto marriage existed between Jennifer and Hanke. He argues that, if paragraph 2.11 of the

MSA precluded him from seeking relief unless he could prove a single residence consisting of

Jennifer and Hanke, it would have completely undermined his ability to do so considering

Jennifer’s efforts to obscure the seriousness of their relationship. He contends that the trial court

made its ruling under the proper standard, including paragraph 2.11 of the MSA and other factors

it considered when determining whether a de facto marriage existed. In his cross-appeal, he

maintains that the court improperly entered protective orders limiting his ability to review certain

text messages between Jennifer and Hanke. In addition, he argues that the court erred when it failed

to find that there had been a substantial change in Joseph’s financial circumstances warranting a

modification of his obligations under the MSA.

¶ 48 Before addressing the merits of this appeal, Joseph submitted in his response brief that

Jennifer’s statement of facts was incomplete and self-serving in that it excluded facts important to

the understanding of the trial court’s ultimate conclusion as well as the case generally, in violation

of Supreme Court Rule 341(h)(6) (eff. Oct. 1, 2020). Rule 341(h)(6) requires a statement of facts

“necessary to an understanding of the case, stated accurately and fairly without argument or

comment, and with appropriate references to the pages of the record on appeal.” Id. We agree that

Jennifer’s opening brief violates Rule 341(h)(6) because it was woefully inadequate in providing

this court with facts necessary to an understanding of the case when considering the sheer volume

of evidence presented during a three-week intermittent trial and a necessary de novo review of that

evidence on appeal. We can only surmise that Jennifer provided such a short statement of facts

- 15 - because presenting less evidence perhaps would support her argument that she did not have a de

facto marital relationship with Hanke.

¶ 49 Compounding Jennifer’s paltry statement of facts, she also failed to comply with Illinois

Supreme Court Rules 342(a)(1) and (3) (eff. Oct. 1, 2019), which require an appellant’s brief to

include “an appendix [and] a complete table of contents, with page references, of the record on

appeal.” Jennifer’s table of contents to the record on appeal in her appendix is merely a copy of

the table of contents from the trial court’s records, which in no way provides this court with a

means to navigate the more than 3,000-page record in a complex postdecree proceeding. Jennifer

was required to include a table of contents to the record that stated the nature of each document,

order, or exhibit, and the dates of filing or entry of orders. Here, Jennifer’s table of contents to the

record on appeal following an intermittent three-week trial, consisting of more than 1,000 pages

of the common law record, 1,363 pages of trial testimony, more than 500 pages of an impounded

record, and more than 500 pages of exhibits, provided no detail whatsoever as to the nature of

testimony, each document, order, or exhibit.

¶ 50 Supreme court rules are not merely suggestions but are necessary for the proper and

efficient administration of the courts. In re Marriage of Kiferbaum, 2014 IL App (1st) 130736, ¶

20. When a brief fails to follow the requirements set forth in the supreme court rules, we may

dismiss the appeal. Lamb-Rosenfeldt v. Burke Medical Group, Ltd., 2012 IL App (1st) 101558, ¶

21; Fender v. Town of Cicero, 347 Ill. App. 3d 46, 51 (2004). Indeed, our supreme court’s rules are

not simply hortatory but are mandatory and are to be scrupulously followed. In re Marriage of

Petrik, 2012 IL App (2d) 110495, ¶ 38. We recognize, however, that striking a brief or dismissing

an appeal is a particularly harsh sanction. People v. Thomas, 364 Ill. App. 3d 91, 97 (2006) (citing

In re Detention of Powell, 217 Ill. 2d 123, 132 (2005)). Although Jennifer’s deficient brief

- 16 - frustrates our review, we will consider the merits of the appeal. We admonish Jennifer’s counsel

to adhere to the requirements of the supreme court rules in future appeals.

¶ 51 A. Standard of Review

¶ 52 Under the Act, when a marriage is dissolved, a trial court “may grant a maintenance award

for either spouse” or the spouses can agree on maintenance payments pursuant to an MSA. 750

ILCS 5/502(a), 504(a) (West 2018). The terms of an MSA are binding on the parties and the courts.

Blum v. Koster, 235 Ill. 2d 21, 32 (2009); see 750 ILCS 5/502(b) (West 2018). In an MSA, “[t]he

parties may provide that maintenance is non-modifiable in amount, duration, or both.” 750 ILCS

5/502(f) (West 2018). If the parties do not so specify, a spouse’s maintenance obligations are

modifiable “upon a substantial change of circumstances.” Id. Here, the parties agreed to and

executed an MSA with specific provisions for the allocation of maintenance.

¶ 53 An MSA is a contract, subject to the usual rules of contract interpretation. Blum, 235 Ill.

2d at 33. When interpreting a contract, the reviewing court’s objective is to give effect to the

parties’ intent, determined from the language of the contract given its ordinary meaning. In re

Marriage of Scarp, 2022 IL App (1st) 210711, ¶ 11. “As a general rule, the parties’ intentions are

determined from their final agreement.” Kehoe v. Commonwealth Edison Co., 296 Ill. App. 3d 584,

590 (1998). Illinois follows the “four corners rule for contract interpretation in that, ‘[a]n

agreement, when reduced to writing, must be presumed to speak the intention of the parties who

signed it. It speaks for itself, and the intention with which it was executed must be determined

from the language used.’ ” Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462 (1999)

(quoting Western Illinois Oil Co. v. Thompson, 26 Ill. 2d 287, 291 (1962)). “If the language of the

contract is facially unambiguous, then the contract is interpreted by the trial court as a matter of

- 17 - law without the use of parol evidence.” Id. We review contract interpretation de novo. Blum, 235

Ill. 2d at 33.

¶ 54 B. Interpretation of the MSA

¶ 55 Jennifer argues that the parties’ MSA defines cohabitation to include essential terms for a

modification to occur and that the MSA was clear and unambiguous as to the definition of

cohabitation. She contends that the parties specifically contracted around the statutory requirement

that maintenance be terminated upon cohabitation, as provided in section 510(c) of the Act. 750

ILCS 5/510(c) (West 2018). Jennifer asserts that the trial court erred when it utilized a totality of

the circumstances analysis and bypassed the operational terms of the MSA that defined

cohabitation, thereby making those terms superfluous. She insists that the definition of

cohabitation in the MSA is not subsumed by the other factors in law but should be considered on

its own terms. She argues that, in effect, she and Joseph specifically contracted for and enumerated

in their MSA what specific factors would hold the most import to a determination of cohabitation.

Jennifer contends the court failed to consider the contractual terms the parties had agreed to when

it found that she was cohabiting with Hanke.

¶ 56 Jennifer maintains that “cohabitation” under the terms of the MSA here requires a physical,

residential component, meaning that the alleged paramour must be residing in the party’s home.

According to Jennifer, “under a traditional totality of the circumstances analysis, whether the

couple resides together is just one circumstance of determining cohabitation,” whereas in this case,

“the parties’ agreement requires co-residency for [her] to be cohabiting.” In short, Jennifer argues

that the plain language of the MSA requires actual, physical residency. She contends that the court

made no finding that she and Hanke resided together or shared a home together.

- 18 - ¶ 57 Further, Jennifer argues that the parties explicitly defined cohabitation to consist of a

combination of households, meaning that she would have had to join her home and household with

Hanke. Jennifer contends that the trial court made no such finding that she and Hanke had

combined their homes or households. She points out that the court found no financial intermingling

between her and Hanke. Thus, she maintains that without a finding of “actual, physical, residential

cohabitation consisting of a combination of households, cohabitation cannot be determined, and a

maintenance modification cannot be triggered in accordance with the [MSA].” We disagree.

¶ 58 Section 510(c) of the Act provides, “[u]nless otherwise agreed by the parties in a written

agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future

maintenance is terminated by the death of either party, or the remarriage of the party receiving the

maintenance, or if the party receiving maintenance cohabits with another person on a resident,

continuing conjugal basis.” 750 ILCS 5/510(c) (West 2018). The rationale for this rule is that it

would be inequitable for a person to receive maintenance while he or she is involved in a husband-

and-wife relationship with a new paramour but does not legally formalize it. In re Marriage of

Herrin, 262 Ill. App. 3d 573, 577 (1994).

¶ 59 Here, when the parties executed the MSA, which was incorporated into the judgment for

dissolution of marriage, they agreed in paragraph 2.11 that Jennifer’s “cohabitation on a continuing

conjugal basis (not a dating relationship but actual physical, residential cohabitation consisting of

a combination of households, along with any other factors then existing in law) shall not serve as

a terminating event.” Paragraph 2.11 then sets forth a schedule to determine the amount of

maintenance “[i]n the event she cohabits *** prior to May 6, 2029.” In short, the parties agreed to

not terminate maintenance payments under section 510(c) of the Act in the event Jennifer was

found to be cohabitating but instead modify it based upon an agreed formula. Part of paragraph

- 19 - 2.11 mirrors section 510(c), when it states, “cohabitation on a continuing conjugal basis.” The

language included thereafter in the parentheses appears to be an attempt by the parties to narrow

the definition of cohabitation.

¶ 60 Our supreme court has held that a contract will not be interpreted in a manner that would

nullify or render provisions meaningless, or in a way that is contrary to the plain and obvious

meaning of the language used. Thompson v. Gordon, 241 Ill. 2d 428, 442 (2011) (a contract must

be read as a whole and its provisions interpreted in conjunction with each other). Indeed, “when

parties agree to and insert language into a contract, it is presumed that it was done purposefully,

so that the language employed is to be given effect.” Id.

¶ 61 In this case, Jennifer seeks application of only the first clause contained in the parentheses

of paragraph 2.11 of the MSA, “actual physical, residential cohabitation consisting of a

combination of households,” without consideration of the language in the second clause of the

sentence, “along with any other factors then existing in law.” Jennifer argues that considering “any

other factors then existing in law” would be redundant considering that the MSA requires a

heightened standard of actual, physical, residential cohabitation to be proven. However, “[t]he

rules of contract interpretation require us to give effect to all of a contract’s terms and to avoid

rendering other terms meaningless.” In re Marriage of Hoffman, 264 Ill. App. 3d 471, 475 (1994).

¶ 62 Moreover, as the parties specifically contracted to prevent termination of maintenance

under section 510(c) of the Act, they likewise could have defined cohabitation in paragraph 2.11

as “living together in a single residence” but chose not to do so. In addition, the parties could have

further elaborated what it means to have “a combination of households.” “A court may not add to

a contract terms that the parties have not expressly included.” In re Marriage of Tutor, 2011 IL

App (2d) 100187, ¶ 13.

- 20 - ¶ 63 Here, the parties agreed that cohabitation under the MSA is “actual physical, residential

cohabitation consisting of a combination of households, along with any other factors then existing

in law.” Ignoring the second clause, “along with any other factors then existing in law,” would

render those terms meaningless when the parties themselves specifically included that language in

the contract. Hoffman, 264 Ill. App. 3d at 475. “It is not what one of the parties may have intended

that controls, but what is shown by the contract to have been the intention of both parties.”

(Emphasis added.) Foxfield Realty, Inc. v. Kubala, 287 Ill. App. 3d 519, 524 (1997). Further, “[t]he

language of a contract is not ambiguous simply because the parties disagree upon its meaning, nor

is it ambiguous if the court can determine its meaning without any guide other than a knowledge

of the simple facts on which, from the nature of language in general, its meaning depends.”

(Internal citations omitted.) Id. In sum, paragraph 2.11 of the MSA provides that “any other factors

then existing in law” are to be considered in conjunction with whether there was an “actual

physical, residential cohabitation consisting of a combination of households.” Thompson, 241 Ill.

2d at 442.

¶ 64 In this case, where the parties agreed to an MSA with terms governing cohabitation in

paragraph 2.11, the trial court had no choice but to give effect to those terms, which included the

application of “any other factors then existing in law.” In re Marriage of Shulga, 2019 IL App (1st)

182028, ¶ 23. It appears that Jennifer believed that if she kept her finances separate from Hanke

and maintained a separate residence, that evidence would be enough to meet her definition of

paragraph 2.11 of the MSA. The language of paragraph 2.11, however, did not require a specific

finding that Jennifer and Hanke live together in one residence. Further, a “combined household”

as Jennifer would define it would be limited to commingled finances or where the significant other

keeps his personal belongings, which are factors that the trial court certainly considered in this

- 21 - case. As will be discussed in greater detail herein, the court also considered “any other factors then

existing in law,” which language the parties agreed to in their MSA. We find no error in the trial

court’s method of interpreting the unambiguous language of paragraph 2.11 and applying “any

other factors then existing in law” pursuant to the MSA when it made its findings. Thompson, 241

Ill. 2d at 442; Shulga, 2019 IL App (1st) 182028, ¶ 23; see In re Marriage of Schurtz, 382 Ill. App.

3d 1123, 1125 (2008) (“Where the language of the agreement is clear and its meaning is

unambiguous, courts must give effect to that language.”). We reject Jennifer’s argument that the

court improperly relied upon a totality of circumstances analysis of the factors then existing at law

in arriving at its decision.

¶ 65 C. The Manifest Weight of the Evidence Supports the Trial Court’s Findings

¶ 66 Next, we consider whether the trial court’s finding that Jennifer and Hanke had a de facto

marriage by cohabitation was against the manifest weight of the evidence. Jennifer argues that the

evidence does not support a determination that she and Hanke had actual, physical residential

cohabitation consisting of a combination of households in accordance with the MSA.

¶ 67 As incorporated in the parties’ MSA, maintenance will be modified upon a finding of

Jennifer’s “cohabitation on a continuing conjugal basis (not a dating relationship but actual

physical, residential cohabitation consisting of a combination of households, along with any other

factors then existing at law).” “Whether the relationship rises to the level of a de facto marriage is

generally a question of fact.” In re Marriage of Larsen, 2023 IL App (1st) 230212, ¶ 110. The party

seeking the cohabitation finding must show by a preponderance of the evidence that “a de facto

husband-and-wife relationship exists.” Herrin, 262 Ill. App. 3d at 576; see In re Marriage of Susan,

367 Ill. App. 3d 926, 929 (2006).

- 22 - ¶ 68 In determining whether the party 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 the activities engaged in; (4)

the interrelation of personal affairs (including finances); (5) whether they vacation together; and

(6) whether they spend holidays together.” In re Marriage of Miller, 2015 IL App (2d) 140530, ¶

40 (citing Susan, 367 Ill. App. 3d at 929). If the initial burden is met, the burden then shifts to the

recipient spouse to show that he or she is not engaged in a de facto husband-and-wife relationship.

Larsen, 2023 IL App (1st) 230212, ¶ 109. Each cohabitation case “turns on its own set of facts;

just as no two relationships are alike, no two cases are alike.” In re Marriage of Miller, 2015 IL

App (2d) 140530, ¶ 40. The reviewing court will not disturb the trial court’s ruling on the issue of

cohabitation unless it is against the manifest weight of the evidence. Id. “A decision is against the

manifest weight of the evidence if the opposite conclusion is clearly evident or the decision is

unreasonable, arbitrary, or not based on the evidence.” Id. (citing In re Marriage of Nord, 402 Ill.

App. 3d 288, 294 (2010)).

¶ 69 In Miller, this court cautioned that while a consideration of the non-exhaustive list of six

factors is helpful to any determination of maintenance modification or termination, it should not

be considered a checklist whereby a court merely notes the presence of certain facts that fit into

each factor. In re Marriage of Miller, 2015 IL App (2d) 140530, ¶¶ 46, 48, 60. Instead, “courts

should be mindful that the 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.” Id. ¶ 46. The Miller court disagreed that the six

factors alone were sufficient “to encapsulate the totality of the circumstances in all cases,” because

they “focus greatly on the emotional and social components of a relationship as opposed to

- 23 - practical and financial aspects that life partners share.” Id. ¶ 48. Nevertheless, a court’s application

of the six-factor analysis should still consider the true purpose of section 510(c) of the Act when

considering whether maintenance should be terminated or, under the MSA in this case, modified

“ ‘whenever the spouse receiving the maintenance has entered into a husband-wife relationship

with another, whether this be by legal or other means.’ ” Id. ¶ 50 (quoting In re Marriage of

Sappington, 106 Ill. 2d 456, 467 (1985)). The Miller court explained, “[t]hat is why, in using the

six-factor analysis, a court must weigh the seriousness or magnitude of a given factor and not just

note its presence.” Id. Further, “[c]ourts should look for signs of mutual commitment and

permanence.” Id.

¶ 70 The Miller court distinguished between an intimate dating relationship and a more

marriage-like relationship, stating:

“Intimate dating relationships have companionship and exclusive intimacy, whereas

marriage-like relationships, while likewise having companionship and exclusive intimacy

(not necessarily sexual but such that the former spouse does not engage in a similar

relationship with a third person), also have a deeper level of commitment, intended

permanence, and, unless reasonably explained, financial or material partnership (which

would most commonly come in the form of a shared household).” Id. ¶ 61.

¶ 71 With these principles in mind, we hold that the trial court’s finding that Jennifer and Hanke

were involved in a de facto marriage was not against the manifest weight of the evidence because

not only do the six factors support a finding of a de facto marriage, other facts establish a deep

level of family blending and time spent together, along with intended permanence and mutual

commitment.

- 24 - ¶ 72 The first factor concerns the length of the parties’ relationship. Jennifer and Hanke began

an exclusive relationship together in 2018. The couple shared a monogamous and sexual

relationship. Indeed, Hanke moved from Colorado to Illinois in February 2021 to demonstrate his

commitment to Jennifer. These facts suggest a de facto husband-and-wife relationship more than

an intimate dating relationship (In re Marriage of Walther, 2018 IL App (3d) 170289, ¶ 27),

however, the trial court placed “very little weight on this factor alone” in its ruling.

¶ 73 We next consider the second factor (amount of time spent together), wherein the trial court

noted that it had difficulty quantifying the actual amount of time that Jennifer and Hanke spent

together. Hanke testified that when he initially moved from Colorado to Illinois, he stayed at

Jennifer’s house for a few weeks to help her recuperate from surgery. Thereafter, he moved in with

Jennifer’s mother for about eight or nine months and then rented a room at a communal house.

Hanke testified that he did not know the names of other roommates at the communal house despite

renewing his six-month lease four times. Hanke testified that he spent 30% to 40% of his overall

nights at Jennifer’s residence and 50% of the nights there when the children were not present.

Osojnak, whom Joseph had hired to conduct surveillance of Jennifer’s residence, testified that he

had observed Hanke’s vehicle parked in Jennifer’s driveway during overnight hours on 15 of the

28 nights that he conducted surveillance. Although the observation of Hanke’s vehicle in Jennifer’s

driveway did not necessarily indicate Hanke’s presence inside Jennifer’s home, the court

reasonably inferred his presence there. Based on the evidence, the court found that Hanke and

Jennifer had spent 50% of their overnights together. Nevertheless, the court did not find this factor

weighed strongly in favor of either an intimate dating relationship or a de facto marriage. We agree

that the evidence was not conclusive regarding the amount of time Jennifer and Hanke shared

together.

- 25 - ¶ 74 The third factor (nature of activities engaged in), however, strongly weighs in favor of a de

facto marriage. The evidence presented at trial conclusively established that Hanke and Jennifer’s

children developed a significant bond with each other. Jennifer entrusted Hanke with her children

to the extent that he traveled with Jennifer and the children on multiple vacations together,

celebrated the birthdays of her children, volunteered regularly at the children’s school, attended

the children’s activities and important life events, and celebrated many holidays with the children.

Jennifer further entrusted Hanke to care for her children when she was not present. Indeed,

beginning in 2019, on certain occasions, Jennifer would attend out-of-state dance competitions

with one of her children while Hanke stayed with the other children at her house. He cared for the

children and fed them when Jennifer was away from home. Jennifer testified that Hanke also

attended the children’s out-of-state competitions and cared for the children who were not

competing. Hanke testified about how he played board games with the children, helped them with

their homework, bought them presents, and administered medication to them. Hanke was listed on

a website that allowed him to review the children’s artwork online. Numerous pictures, admitted

as exhibits, demonstrated Hanke’s closeness to Jennifer’s children and consistent involvement in

their activities and life events. Following the death of her mother in November 2021, Jennifer

approved the wording of her mother’s obituary, which listed Hanke’s name in brackets next to

hers, an indication of Hanke’s elevated status in her life. In January 2023, Jennifer flew with her

children to Colorado for a celebration of Hanke’s father’s life. The evidence presented at trial

overwhelmingly demonstrated that Jennifer, by way of allowing Hanke to participate so frequently,

extensively, and intimately in the lives of her children, exemplified her commitment to Hanke. We

agree with the trial court that this factor weighs strongly in favor of the existence of a de facto

marriage.

- 26 - ¶ 75 The fourth factor involves the interrelation of Jennifer’s and Hanke’s personal affairs. The

evidence did not show an intermingling of finances, however, this is reasonably explained by the

incentive to maintain the current level of maintenance, which is supported by Jennifer’s November

20, 2018, text message to Joseph. See Miller, 2015 IL App (2d) 140530, ¶ 61. Jennifer and Hanke

kept separate bank accounts and their testimony showed that they did not pay each other’s bills.

Hanke testified that he would reimburse Jennifer in cash for his share of the vacations they took

¶ 76 Although Jennifer and Hanke kept their financial affairs separate, as we have already

discussed, they significantly intermingled many other personal affairs, particularly involving

Jennifer’s children. Jennifer attempted to downplay Hanke’s relationship with her children, but the

evidence demonstrated otherwise. The trial court listed 21 different examples of Hanke’s

involvement with the children in its declaratory judgment order, including his expression of love

for one of them, regularly transporting them to extracurricular activities upon Jennifer’s request,

and volunteering for school field trips with Jennifer’s authorization. Jennifer had listed Hanke as

an emergency contact at the children’s schools. Further, Jennifer’s texts to Hanke were replete with

communications regarding the children to the extent it was obvious that she had vested him with

a caretaking role for her children. Jennifer permitted and encouraged the safekeeping and care of

her children to Hanke, which ultimately demonstrates that she is fully committed to her

relationship with him and intends it to be permanent, regardless of whether she actually intends to

be married to him. The evidence of the interrelation of their personal affairs strongly supports a

finding of the existence of a de facto marriage.

¶ 77 Considering the fifth factor, whether Jennifer and Hanke vacationed together, the record

shows that Jennifer and Hanke frequently traveled together, mostly with her children and

- 27 - sometimes with Jennifer’s other family members or with Hanke’s son. Beginning in 2019, Hanke

traveled with Jennifer, her children, and her mother to Sanibel Island, Florida for a two-week

vacation. In June 2021, he traveled with his son, Jennifer, and her children to Disney World. During

the same summer, Hanke, Jennifer, her children, and Jennifer’s family members traveled to

Branson, Missouri and Pensacola, Florida. Hanke traveled with Jennifer to Jamaica and Niagara

Falls in 2022. Hanke, Jennifer, and her children flew to Colorado in January 2023 for a celebration

of Hanke’s father’s life. During the summer of 2023, Hanke, Jennifer, and her children went on a

cruise together. The frequent vacations taken by Jennifer and Hanke, combined with the

involvement of her children and their family members on several of the trips, supports a finding

that they were in a de facto husband-and-wife relationship. See In re Marriage of Miller, 2024 IL

App (3d) 230098, ¶¶ 71-74 (concluding that this factor favored a finding of a de facto marriage,

where the couple took seven or eight trips; the fact that the trips often involved family members

“showed a level of commitment that was more akin to a de facto marriage”); In re Marriage of

Churchill, 2022 IL App (3d) 210026, ¶ 40 (finding that taking at least 10 trips together, including

trips involving family gatherings, during a three-and-a-half-year period evidenced a de facto

husband-and-wife relationship). In Churchill, although the couple paid their own expenses on

those trips, the reviewing court found “that does not discredit the fact that they frequently

vacationed together as a couple.” Churchill, 2022 IL App (3d) 210026, ¶ 40. Similarly, in this case,

the fact that Hanke reimbursed Jennifer for his expenses for the vacations does not minimize the

amount of time they traveled together as a family. Id.

¶ 78 The sixth factor considers whether Jennifer and Hanke celebrated holidays together. The

evidence shows that not only did they spend holidays together but that Hanke frequently celebrated

holidays with Jennifer’s children as well. Hanke testified that he celebrated Easter, Labor Day,

- 28 - Halloween, and Christmas with Jennifer and the children. Jennifer testified that Hanke attended

all the holidays celebrated at Jennifer’s home since he moved to Illinois in 2021. He took the

children trick-or-treating on Halloween and bought the children birthday presents. Hanke attended

a graduation party for one of Jennifer’s children. Given the multitude of holidays and special

occasions Hanke spent with Jennifer, her children, and her family members, we conclude this

factor also supports the finding of a de facto husband-and-wife relationship.

¶ 79 Further, the trial court in this case weighed “the seriousness or magnitude of each given

factor” considering the totality of the circumstances, before concluding that Jennifer and Hanke

were in a de facto marriage. See Miller, 2015 IL App (2d) 140530, ¶¶ 67-68. Prior to Hanke moving

to Illinois, Jennifer frequently urged Hanke to come “home.” She asked Hanke to move to Illinois

to be with her. Hanke testified that he ultimately moved to Illinois to prove his commitment to

Jennifer. They regularly texted messages of love back and forth. Hanke referred to Jennifer’s father

as “dad.” Hanke testified that he had purchased a charm for Jennifer that was engraved with

“Forever and Always.” In March of 2023, after Hanke had sent a text message to Jennifer stating,

“I just wanted to tell you that I am so thankful you are in my life,” she responded, “I love you too

sweetheart! If you were not in my life then [sic] I wouldn’t want to exist anymore.” These

expressions are evidence of intended permanence of their relationship despite Jennifer’s

protestations. See id.

¶ 80 In the context of analyzing non-exhaustive factors, a court may consider a party’s

awareness of the legal consequences of cohabitation, especially where the parties alter their

behavior to hide the true nature of their relationship. Id. ¶¶ 65-66; Herrin, 262 Ill. App. 3d at 577-

78. The record in this case shows that Jennifer and Hanke were aware of the legal consequences

of cohabitation and that they altered their behavior to hide the nature of their relationship. For

- 29 - example, Jennifer arranged with her neighbor, Sandy Cobb, to have Hanke park his vehicle in

Sandy’s driveway on multiple occasions. We can reasonably infer Jennifer made this arrangement

to avoid Hanke’s vehicle being observed in her driveway on those occasions. In a 2018 text

message, Jennifer wrote Joseph, “even if when [Hanke] moves out here and I won’t be open quote

Living Together close quote for 11 years, sorry Charlie.” In short, Jennifer’s and Hanke’s conduct

demonstrated altered behavior so as not to illustrate a marriage-like relationship that was motivated

by an awareness of the law concerning cohabitation. See Herrin, 262 Ill. App. 3d at 578 (analyzing

whether a de facto marriage existed, the court considered that the alleged paramour was aware that

if he married the petitioner or continuously slept at her residence, she would no longer receive

maintenance).

¶ 81 Based on the non-exhaustive application of the six common-law factors helpful to our

analysis, combined with evidence of the deep level of family blending and time spent together on

holidays and vacations, the evidence of intended permanence, mutual commitment, and Hanke’s

clear familial caretaking role, as well as the awareness of the cohabitation rules and the couple’s

altered behavior, we find that Jennifer and Hanke were cohabiting under the terms of the MSA and

that they have been involved in a de facto marriage since November 2021, when Jennifer publicly

declared her relationship with Hanke. As such, we conclude that the trial court’s finding of a de

facto marriage was not against the manifest weight of the evidence. The court properly granted

declaratory judgment in favor of Joseph and against Jennifer.

¶ 82 D. Joseph’s Cross-Appeal

¶ 83 On cross-appeal, Joseph argues that the trial court erred by allowing Jennifer to redact text

messages containing personal information. In light of our cohabitation finding, this claim of error

is moot.

- 30 - ¶ 84 Joseph also argues that the trial court erred when it failed to find that there had been a

substantial change in his financial circumstances, warranting a modification of his obligations

under the judgment. Paragraph 2.9 of the MSA states that “maintenance shall be modifiable as

provided for in 750 ILCS 5/510.” Section 510(a-5) of the Act provides that maintenance may be

modified “only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5)

(West 2018). The party seeking modification bears the burden of proving this change. In re

Marriage of Logston, 103 Ill. 2d 266, 287 (1984). A trial court’s decision regarding modification

of maintenance will not be disturbed absent an abuse of discretion. Id. An abuse of discretion

occurs when the court’s decision is “arbitrary, fanciful, unreasonable, or where no reasonable

person would take the view adopted by the court.” In re Marriage of Osseck, 2021 IL App (2d)

200268, ¶ 49.

¶ 85 “The ability of the maintenance-paying spouse to contribute to the other spouse’s support

can be properly determined by considering both the paying spouse’s current and future ability to

pay ongoing maintenance.” In re Marriage of Stoker, 2021 IL App (5th) 200301, ¶ 76. “The trial

court considers the level at which the spouse is able to contribute, not merely the level at which he

is willing to work.” Id. “When imputing income, a court must find one of the following: (1) the

payor has become voluntarily unemployed, (2) the payor is attempting to evade a support

obligation, or (3) the payor has unreasonably failed to take advantage of an employment

opportunity.” Id.

¶ 86 Here, it was Joseph’s burden, as the moving party, to establish that a substantial change in

circumstances occurred. At the time of the divorce, Joseph earned $475,000 as the CEO of

Oberweis Dairy. He owned 30% to 35% of the corporate stock. In 2022, he earned a salary of

$429,000 but was eligible for bonuses. However, Joseph testified that he did not believe the bonus

- 31 - plan was realistically attainable. When he attempted to bring in outside investors towards the end

of 2022, he testified that he was the only shareholder in favor of raising capital. In what appeared

to be a retaliatory move, Joseph’s salary was reduced by the other shareholders to $300,000,

effective January 1, 2023. Considering his dissatisfaction with his new salary and his belief that

Oberweis Dairy needed outside capital, he sold his portion of corporate stock to his siblings for “a

little less than $2,000,000” and tendered his letter of resignation as CEO in June of 2023. Thus,

Joseph became voluntarily unemployed.

¶ 87 Joseph testified that, following his resignation, he began to search for new employment,

although he believed it would take one to two years to become reemployed. He relied on the

diversification of his assets while seeking new employment and his financial affidavit detailed two

brokerage accounts with combined funds in excess of $3,300,000. He considered investing

between $500,000 and $1 million of his own funds to purchase the dairy.

¶ 88 The evidence showed that Joseph did not modify his lifestyle since the reduction or the

elimination of his salary from Oberweis Dairy. Joseph did not reduce any of his monthly

expenditures since resigning from his position. He was able to pay his credit card bills in their

entirety every month, including more than $30,000 in August 2023. In addition, he continued to

pay his legal representation $20,000 per month. He also provides a monthly stipend of $3,500 to

his current wife for personal use. Despite his unemployment, he had scheduled a vacation to

Mexico, including airfare totaling $8,000, renting a house for $14,000, and retaining an on-site

chef. He resides in an 8-bedroom house valued at $1,400,000.

¶ 89 Considering Joseph’s testimony and the supporting evidence, the trial court found that

Joseph had “substantial assets and is well-able to continue paying his maintenance obligation to

Jennifer and to contribute to the child-related expenses as previously ordered, in spite of his loss

- 32 - of income.” Our review of the evidence supports the trial court’s conclusion that Joseph has both

the current and future ability to pay ongoing maintenance. Stoker, 2021 IL App (5th) 200301, ¶ 76.

We find that the trial court did not abuse its discretion when it denied Joseph’s motion to modify

maintenance.

¶ 90 III. CONCLUSION

¶ 91 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 92 Affirmed.

- 33 -