MOUNT VERNON - Stacey Colbert must reimburse former husband Roger Colbert for monthly maintenance checks he sent to her while she cohabited with Jody Short of Roxana, Fifth District appellate judges ruled on Aug. 28.
They reversed St. Clair County Circuit Judge Patrick Foley, who denied Roger’s petition to terminate maintenance and awarded $3,000 to Stacey for attorney fees.
Justice John Barberis wrote that Stacey attempted to hide the nature of the relationship to preserve her maintenance payments.
Barberis found she changed her legal address with her employer, her bank and the court, and on her state and federal tax returns to receive mail at Short’s home.
“Given the evidence presented before the trial court, we cannot conclude that at some point in time Stacey and Short did not have a de facto marriage where the evidence showed they were together on a resident, continuing conjugal basis," he wrote.
He found the purpose of the law is not to control public morals but to prevent inequity when a former spouse becomes involved in a husband and wife relationship but does not formalize it.
Justices Judy Cates and Michael McHaney concurred.
Roger and Stacey married in 1995 and shared children born in 1995, 1996, and 1999.
Roger filed a petition for dissolution in 2018 and Stacey filed a counter petition requesting maintenance and attorney fees.
They reached an agreement that Stacey would be responsible for her expenses and Roger would pay her $2,045 per month in maintenance.
She kept a Jeep Wrangler and he paid $1,500 towards her attorney fees.
Roger paid maintenance to Stacey by check from 2018 through 2021.
On Dec. 28, 2021, Stacey filed a notice that she would garnish Roger’s wages in the amount of $2,045 per month.
She gave an address at 116 West Second Street in Roxana.
Roger petitioned to terminate maintenance in January 2022 and filed a memorandum in April claiming she resided with Jody Short in his home at the Roxana address.
He claimed maintenance terminates by operation of law when cohabitation begins and he asserted entitlement to reimbursement.
He claimed Stacey’s landlord terminated her lease in Millstadt in November 2021 due to the landlord’s desire to sell the residence.
He claimed he learned the landlord wished to sell and he asked Stacey for a new address.
He claimed she responded that she didn’t have an address and she wanted him to deposit her maintenance electronically.
He claimed the garnishment action prompted him to hire private investigators William Keaney and Bob Thomure.
At a hearing in November 2022, Keaney and Thomure testified about their surveillance of Short’s home, Stacey’s job location in Caseyville, and a duplex she rented in Waterloo.
They testified they saw her enter Short’s home with a key.
Keaney said Roger told him in February that Stacey rented the Waterloo duplex.
He said he visited the duplex three or four times after Stacey finished work and never saw her.
He said he didn’t check Stacey’s mother’s house in Waterloo although Stacey informed Roger that she planned to split time between her mother’s home and Short’s home.
Stacey’s counsel Charles Courtney asked Keaney why he didn’t observe her mother’s house and he said, “All through January, February, March she was always in Roxana. There was no need to go to her mother’s house when she was staying in Roxana.”
Roger’s counsel Susan Smith called Stacey as an adverse witness and she testified that she filed to garnish his paycheck because it would be easier.
Stacey testified she dated Short from August 2019 to June 2022.
She said her employer updated her address from the Millstadt apartment to Short’s home.
She said her income tax returns for 2021 listed Short’s home as her residence.
She said she often went to breakfast and dinner and socialized with Short and friends at the American Legion in Roxana.
She said Short did not give her a key but left the door unlocked.
Roger testified he didn’t give his investigators the address for Stacey’s mother because he knew she wasn’t there based on what his kids told him.
The hearing continued in January 2023 and Stacey testified she lived at the Waterloo duplex since February 2022.
She said she and Short didn’t exchange rings, own a joint bank account, hold joint credit cards, share keys or purchase vehicles or furniture together.
She said she lived with her parents in Waterloo and spent nights at Short’s home.
She said she never intended to marry Short.
“We just went out and had a good time together but it was never anything that was going to end up being a marriage thing or really serious," she said.
Foley entered an order finding the evidence did not show that she resided on a continuing and conjugal basis with Short.
He found no evidence of any relationship other than intimate dating.
He found she “maintained a separate residence at her mother’s home from December 2021 until she rented a new residence in February 2022.”
He found she changed her address because she did not have a permanent residence.
He found it important that they didn’t get engaged or exchange rings.
He ordered Roger to pay Stacey’s due to disparity in their incomes.
Roger appealed and Fifth District judges disagreed with Foley’s finding that Stacey maintained a separate residence at her mother’s home from December 2021 until February 2022.
Barberis found no evidence besides Stacey’s own testimony to support this finding.
He found Keaney never saw Stacey at the Waterloo duplex.
He found Thomure served Roger’s memorandum on Stacey in April 2022, not at her mother’s home or the Waterloo duplex but at Short’s home.
“The evidence demonstrated that Thomure knew where to find Stacey,” he wrote.
He found Stacey testified she didn’t have a key, “but testimony and evidence besides her testimony demonstrate otherwise.”
"Importantly, the evidence demonstrated that Stacey’s request to garnish Roger’s paycheck, eliminating the need for him to send a physical check to a mailing address, took place the same month that she moved from the Millstadt apartment and three weeks after she requested her employer to update her legal address as Short’s Roxana home," he wrote.
He found Foley did not explain his decision on attorney fees and abused his discretion.
He ordered the circuit court to determine the date that Stacey began cohabitating with Short and calculate the reimbursement she owes Roger.
The circuit clerk’s website shows associate judge Tameeka Purchase presides.