In re Marriage of Hightower

Appellate Court of Illinois, Second District · Family Law

Family Lawdissolution of marriagechild supportcondonationsettlement agreementsdissipationadulterycondonation

Facts

The parties signed a written settlement agreement providing for property disposition, waiver of maintenance, sole custody to petitioner, and reserving child support because respondent waived maintenance, with possible review if respondent's net income substantially exceeded $2,000 per month. Petitioner later sought dissolution on adultery grounds, while respondent asserted condonation; evidence showed petitioner knew of respondent's infidelity by the mid-1990s, the parties underwent counseling, continued living together for years, and according to respondent continued sharing a room, domestic duties, and sexual relations until petitioner filed for divorce in 2001. The trial court found condonation, dissolved the marriage on irreconcilable differences, and incorporated the settlement agreement. The record contained no indication that the trial court took evidence or made the statutory findings required for a deviation from child-support guidelines, and petitioner had filed but never called her dissipation motion for hearing.

Issue

Whether the trial court erred by rejecting adultery as the ground for dissolution based on condonation, by incorporating the parties' settlement agreement into the judgment without proper scrutiny of its child-support provision, and by failing to consider petitioner's dissipation claim. More specifically, the child-support question was whether a court may incorporate a settlement provision deviating from section 505 guidelines without hearing evidence on the statutory factors and making the required findings.

Rule

Condonation is forgiveness of a prior matrimonial offense on the condition that it not be repeated and that the offender thereafter treat the forgiving spouse with conjugal kindness; the party asserting condonation must prove by a preponderance of the evidence that the injured spouse intended to forgive, and appellate review is for manifest weight of the evidence. Under section 505, child-support guidelines apply unless the court, after considering the child's best interests in light of the statutory factors, finds guideline support inappropriate; if support deviates from the guidelines, the court must state the guideline amount, if determinable, and the reasons for the variance. Under section 502, property and maintenance terms of a marital settlement agreement are binding unless unconscionable, but agreements concerning support, custody, and visitation of children are not binding on the court.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Peoria, Illinois, Nina Torres filed for dissolution on adultery grounds after learning in 2018 that her husband, Caleb Moran, had a long-term affair. After that discovery, the couple attended counseling for two years, continued living in the same home, shared a bedroom, and according to Caleb continued sexual relations until Nina filed in 2022. Nina denies she ever forgave him.

If Caleb raises condonation as an affirmative defense, how should the court most likely rule?

Explanation. Condonation is forgiveness of a prior matrimonial offense conditioned on no repetition and later conjugal kindness. It is a question of intent shown by words and deeds, and the party asserting it must prove by a preponderance of the evidence. Continued cohabitation, counseling, sharing a room, and sexual relations after knowledge of infidelity support a finding of intent to forgive. (Derived from In re Marriage of Hightower (n.d.).)