APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. HUNTER, Judge, presiding.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 29, 1976.
This appeal is by a former husband who petitioned for termination of alimony he was paying under the decree that divorced him from his wife. The principal grounds alleged for the termination were his remarriage and the fact that his former wife had entered a convent to become a nun. He contended that payment of alimony to her under these circumstances violated rights secured him by our State and Federal constitutions. After a hearing, the trial court denied the petition.
Two issues are presented for our review. The first is whether the trial court erred in ruling that there was no change in the circumstances of the parties that required termination of alimony. The second is whether compelling a former husband to pay alimony to his former wife after she enters a convent to become a nun creates an impermissible connection between church and State in violation of the first and fourteenth amendments to the United States Constitution and violates article I, section 18 of the Illinois Constitution of 1970. These issues arise from the following facts.
Mary A. Lane and James A. Lane were married in Waterloo, Iowa, on June 6, 1949. They lived as man and wife until about January 12, 1969, when James deserted the marital home in Park Forest, Illinois. During their life together, three children were born to them. Cheryl, in 1952; Scott Michael, in 1953; Mariann, in 1955. In August 1970 Mary Lane was divorced from her husband; Cheryl was then married, Scott Michael and Mariann were then 15 and 14 years of age, respectively. The terms of the decree provided for payment of child support, assignment and transfer of interests in personal property, child custody and visitation rights, and payment to Mary Lane, by James of $250 per month as alimony. The payments were to be made semimonthly until further order of court; and the amount was based on a determination that James then had a net monthly income of $1,150. The alimony was paid in accordance with the provisions of the decree.
On November 19, 1972, Mary Lane entered a convent in Milwaukee, Wisconsin as a postulant and began a period of formation known as a postulancy of six months; immediately thereafter she began a one-year canonical novitiate. Upon learning of this fact, James Lane filed a petition in which he alleged that his former wife had become a nun; that he had paid her a total of $9,750 in alimony; that he had remarried since their divorce; that their youngest daughter was emancipated, maintaining her own apartment; that he needed relief from the alimony provisions of the divorce decree; and that her entry into the convent required her to transfer all monies he paid her to the religious order or some other religious body, making her a remarried woman for all practical purposes and thus necessitating a termination of alimony.
Mary Lane appeared and filed an answer in which she admitted entering a convent, but denied that she was a nun. She alleged she was a novice who was undergoing a period of formation; that only after she had complied with other requirements would she qualify to take the vows of poverty, chastity and obedience; that in the meantime, she was responsible for her medical, dental, and incidental expenses of about $185.50 each month for which she needed her alimony. In later discovery proceedings, she answered interrogatories and stated that since her divorce, she received $5000 as proceeds of an inheritance and invested that sum in government bonds.
Thereafter, the cause came for hearing on the petition and answer, as amended. The parties stipulated to the testimony the convent's Mother Superior would give in the cause were she to appear as a witness. Then, the court heard Mary Lane as an adverse witness, James Lane, Lane's second wife and Scott Michael who was then an emancipated young adult living with his father but contributing to a part of his expenses. After admitting the evidence, receiving exhibits, and listening to arguments of counsel, the trial court entered an order in which it found that since entry of the divorce decree, no change of circumstances had occurred which required termination of the alimony payments. It ruled that the provisions of the decree requiring Lane to pay alimony to his former wife after she entered a convent did not violate any constitutional right he had under either the State or Federal constitutions. The petition for termination was denied, attorneys' fees were awarded Mary Lane and the court determined that its order was final. Accordingly, James Lane appeals and brings to this court the two issues he asks us to resolve.
The first one has been the subject of a long line of decisions by reviewing courts of this State. (See Stillman v. Stillman, 99 Ill. 196; Hilliard v. Anderson, 197 Ill. 549, 64 N.E. 326; Lay v. Lay, 204 Ill. App. 511; Green v. Green, 21 Ill. App.3d 396, 315 N.E.2d 324.) In the process, the rule has been evolved that modification of alimony provisions of a divorce decree rests in the sound judicial discretion of the trial court, and unless the record shows an abuse of discretion, an order that refuses to modify an obligation to pay alimony will not be disturbed on review. (Hoover v. Hoover, 307 Ill. App. 590, 30 N.E.2d 940.) These same courts have said that to justify modification of a divorce decree and terminate the payment of alimony, there must be proof that after the decree, there was a material change in the condition and circumstances of the parties; it must be shown that such a modification is equitable. Cole v. Cole, 142 Ill. 19, 31 N.E. 109; Thomas v. Thomas, 18 Ill. App.3d 673, 310 N.E.2d 432; Gregory v. Gregory, 52 Ill. App.2d 262, 202 N.E.2d 139.
• 1 In the case before us, the trial court heard evidence which proved that after they were divorced, James Lane paid his former wife $9,750 in alimony; that since the decree, there had been a slight increase in his net income and a corresponding increase in his expenses; that all the children of the parties had become emancipated, one was living with Lane but paying for part of his support; that Lane's second wife contributed $7,000 annually to the family's gross income; that Mary Lane had entered a convent, and was now a novice who was working toward the taking of religious vows; that she had personal needs which totaled about $185.50 each month; and that since the divorce, she received $5,000 from an inheritance and had $500 in a checking account.
In our judgment, these facts did not prove a difference in the material needs of the parties or that the termination of alimony requested by James Lane would have been equitable. (See Bowman v. Bowman, 11 Ill. App.3d 719, 298 N.E.2d 339; Pearlman v. Pearlman, 131 Ill. App.2d 388, 266 N.E.2d 388; 24 Am.Jur.2d Divorce and Separation § 665 (1966); Annot., 18 A.L.R.2d 10 (1951).) Therefore, the trial court did not err in ruling that there had been no change in the circumstances of the parties that required termination of the alimony payments James Lane was ...