In Re Marriage of Susan

856 N.E.2d 1167, 306 Ill. Dec. 72, 367 Ill. App. 3d 926, 2006 Ill. App. LEXIS 920
CourtAppellate Court of Illinois
DecidedOctober 6, 2006
Docket2-05-1037
StatusPublished
Cited by16 cases

This text of 856 N.E.2d 1167 (In Re Marriage of Susan) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Susan, 856 N.E.2d 1167, 306 Ill. Dec. 72, 367 Ill. App. 3d 926, 2006 Ill. App. LEXIS 920 (Ill. Ct. App. 2006).

Opinion

JUSTICE O’MALLEY

delivered the opinion of the court:

Respondent, Monica A. Susan, appeals the judgment of the circuit court of Lee County granting petitioner James A. Susan’s petition to terminate maintenance. Respondent argues that the trial court’s determination that she was cohabiting with Don Borski on a resident, continuing conjugal basis (see 750 ILCS 5/510(c) (West 2004)) was against the manifest weight of the evidence. For the reasons that follow, we affirm.

Petitioner and respondent were married on May 27, 1978. They had four children together: Lacey, Jenise, Kelly, and James. On June 27, 2000, the trial court dissolved the marriage. The dissolution order provided that petitioner pay respondent $750 twice per month for maintenance. On April 27, 2005, petitioner filed an amended petition to terminate maintenance, alleging that respondent was cohabiting with another person on a resident and continuing conjugal basis. On September 1, 2005, the trial court held a hearing on the petition, during which the following evidence was adduced.

Respondent testified that she has lived in Stephenson, Michigan, since November 2000. None of her children live with her. Respondent began “going out” with Donald Borski in February 2002. Borski lives in Stephenson, about five miles away from respondent. Borski has four children: Chris, Ron, Mike, and Karen. After respondent began dating Borski, she did not date anyone else, although she did have sex with one other person sometime in 2003. She has not had sex with Borski for over two years.

One to two evenings per week, respondent has dinner at Borski’s house. Two to three evenings per week, respondent goes to Borski’s house to watch television or do some other activity. Respondent often sleeps over at Borski’s house, and Borski often sleeps over at respondent’s house. Borski has a key to respondent’s house. Respondent does not have a key to Borski’s house, but he is “always” home. When asked about other activities that she does with Borski, respondent stated that they have gone fishing, to a casino, or out to eat. Respondent works full time at Oseo Drug, either from 8 a.m. to 5 p.m. or from 9 a.m. to 6 p.m.

Respondent and Borski have spent holidays together. Respondent testified that she spent Thanksgiving and Christmas with Borski in 2002, 2003, and 2004. One Christmas, Borski, along with his son Ron and Ron’s two children, stayed at respondent’s home. Borski and respondent shared a bedroom. Respondent’s daughters Jenise and Kelly stayed with her as well. Borski’s daughter Chris celebrated with them but spent the evening at Borski’s home. Although she could not recall at the hearing, respondent testified in a prior deposition that she and Borski spent the Fourth of July together in 2002, 2003, and 2004. Respondent and Borski spent Easter together in 2003, 2004, and 2005. If respondent had to work on a holiday, she would see Borski after work. Respondent also testified that she and Borski may have spent their birthdays together and that if Borski invites her, she accompanies him to family events. Respondent testified that she has sent out Christmas cards signed, “Love, Mom and Don.” Respondent also sent Jenise a congratulations card signed, “Love, Mom and Don.”

Respondent and Borski have gone on trips together. They spent five days camping and four-wheeling, along with respondent’s son and her son’s girlfriend. While camping, respondent and Borski shared a bed in a camper. Respondent and Borski attended respondent’s nephew’s wedding together in South Carolina. They spent a week in South Carolina and shared a hotel room but did not share a bed. Respondent testified that she has twice visited Borski’s brother with Borski and stayed at Borski’s brother’s home. She could not recall if she visited Borski’s brother a third time, in 2005. She also could not recall testifying at a previous deposition that she stayed with Borski’s brother for four days in 2005. Respondent and Borski have traveled together to Batavia, Illinois, to visit respondent’s friend. While there, the couple spent the night and shared a bed. Respondent and Borski also traveled to Morris, Illinois, to visit Kelly. Borski accompanied respondent on a six-hour drive to attend respondent’s granddaughter’s birthday party, and the couple spent the night. During Easter 2005, respondent and Borski visited Jenise and shared a bedroom in Jenise’s home.

Respondent testified that Borski owns his own home. Respondent does not have a financial interest in Borski’s home, nor does Borski have a financial interest in respondent’s home. Respondent pays her own utility bills. Borski has never paid any medical, clothing, or grocery expenses for respondent or members of respondent’s family. Respondent works full time; Borski is retired. Respondent has never paid any of Borski’s expenses. Respondent has bank accounts in Menominee and Stephenson, Michigan, and in Morris, Illinois. Borski does not have a financial interest in respondent’s bank accounts. Respondent and Borski do not own any personal property together. They do not keep clothing at each other’s home. They have never discussed marriage. Respondent characterized her relationship with Borski as one of friendship.

Scott Rusinek, a private investigator hired by petitioner, testified that on at least one occasion he followed respondent to Borski’s home in the evening and watched her park her car in Borski’s garage. The next morning, Rusinek saw respondent and Borski leave the home together.

Following the presentation of evidence, the trial court made a number of factual findings. The trial court found that respondent and Borski began dating in 2002 and have engaged in a sexual relationship, “albeit infrequent,” since that time. Respondent and Borski have spent most evenings together, including overnight, either at Borski’s or respondent’s house. The trial court noted that respondent presented no evidence that she ever spent an evening alone. The trial court also noted that respondent and Borski share meals together and that it was implied that the party preparing the meal was responsible for the expense of the meal. Respondent and Borski have vacationed together, have visited family together, and have attended the wedding of a family member of respondent. They have spent holidays together for the last few years. They sign greeting cards as “Mom and Don.” Respondent does not have a key to Borski’s home nor does she have a garage door opener for Borski’s garage. Borski does have a key to respondent’s home. Respondent and Borski do not share any financial interests. They do not share joint bank accounts. They do not jointly own any automobiles or real estate. They do not share personal property. Respondent and Borski each pay their own respective expenses. Respondent has never loaned Borski money. Respondent and Borski do not keep any of their clothing at each other’s home. The trial court held that, “The factors set forth by the case law weigh in favor of a finding that [respondent] and [Borski] are cohabiting on a resident, continuing, conjugal basis.” The trial court noted that “[t]he only factor weighing against such a finding is the interrelation of their personal affairs.” Respondent timely appealed. Respondent contends that the trial court’s determination that she and Borski were cohabiting on a resident, continuing conjugal basis was against the manifest weight of the evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
856 N.E.2d 1167, 306 Ill. Dec. 72, 367 Ill. App. 3d 926, 2006 Ill. App. LEXIS 920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-susan-illappct-2006.