APPEAL from the Circuit Court of Christian County; the Hon.
DON E. BEANE, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
This is an appeal by defendant, Aaron Halford, from a judgment of the circuit court of Christian County denying his petition for termination of alimony.
The parties to this action were divorced on December 19, 1974, and by the decree entered that date, Aaron was ordered to pay $40 per week as alimony to Veta Halford. On September 1, 1977, Aaron filed a petition for modification of the decree, seeking the termination of his alimony obligation because of Veta's alleged cohabitation with another man. Although this petition was filed prior to the effective date of the new Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.), it was correctly treated as a petition under section 510(b) of the new Act (Ill. Rev. Stat. 1977, ch. 40, par. 510(b)), which provides in part:
"The obligation to pay future maintenance is terminated * * * if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis." See Ill. Rev. Stat. 1977, ch. 40, par. 801(b).
Veta thereafter filed a motion to dismiss the petition which was denied at the beginning of a hearing conducted on May 4, 1978. The court then heard evidence on the merits of the petition and subsequently entered an order denying the defendant's petition. In this order the court found that there was evidence of a conjugal relationship but that the evidence failed to establish that the "conjugal relationship was one of a continuing nature."
The primary issue on appeal is whether the circuit court's judgment is contrary to the manifest weight of the evidence.
The bulk of the testimony in support of the termination petition came from two witnesses, Veta Halford herself and Bruce Matthews.
Mrs. Halford's testimony was offered under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60). She testified that she is 52 years old and has lived in the same house in Roby, Illinois, for 18 years. The house consists of five rooms, two bedrooms, a living room, a kitchen and a bath. Three other persons live there. They are a daughter, a grandson and Wayne Green, a 46-year-old man. According to Mrs. Halford, Green is a friend whom she has known all of his life. With respect to sleeping arrangements, she stated that her daughter and grandchild sleep on "sleeper-lounges" in the living room and that she sleeps in the north bedroom.
Mrs. Halford further testified that Green has lived in her house for over three years. He is there most of the time unless he is on a hunting trip. Green does not pay rent but gives her $40 a week for food and takes his meals at the house. He is not her daughter's boyfriend. She testified that neither she nor her daughter are "shacked" with him, a term which she understood to mean, "living together, not married." She explained that Green was originally asked to move in by her brother because of problems she was experiencing with nuisance calls and prowlers. Mrs. Halford then went on to state that she has had sexual intercourse with Green. She believes that they have had intercourse no more than three or four times since he has been living there, the last time being in the winter of 1978.
Bruce Matthews, an ex-son-in-law of Mrs. Halford, testified that his ex-wife, Vicki, and son, Chad, reside in Mrs. Halford's home. He is an acquaintance of Green. He first met him a little over three years ago when Green was dating Mrs. Halford. He began seeing him at her house at that time. Green now lives in the same house with Mrs. Halford, and Matthews sees him quite often, sometimes every day, either in town or at the house in which Matthews visits on the average of four to six days a week. Mrs. Halford and Green still go places together.
When asked what he has personally observed that has led him to the conclusion that Green and Mrs. Halford share the north bedroom, Matthews testified that his ex-wife and son have the south bedroom, which is equipped with a bunk bed. His son keeps his clothes in that bedroom in a chest of drawers and Vicki has her clothes in there as well. Matthews further stated that he has seen Green and Mrs. Halford kiss and touch. In response to the question whether he has seen any other acts between the couple which would lead an ordinary person to the conclusion that they are married, he stated that they live together and "are with each other" and that from what he can see they have a close relationship. There appears to be affection between them at times.
On cross-examination Matthews testified that he has not seen Mrs. Halford dating anyone but Green since her divorce and that he has seen Green work in the yard, cutting the grass. Matthews agreed that by his testimony he was saying that Green and Mrs. Halford are "living together" in her home. He further testified that he has seen his son sleeping in the bunk bed in the south bedroom in the last three years. He was aware, however, that part of the time during the last year his son and ex-wife have slept on daybed couches in the living room because there is a roll of uninstalled carpet in the doorway of the south bedroom which has made it difficult to enter the room.
In other testimony, Matthews stated that at least in the last few months, the top bunk in the south bedroom has been incapable of being slept on since it is loaded down with carpet and padding and that he has not seen anyone sleeping in the south bedroom. He testified further that he has seen Green and Mrs. Halford go into the same bedroom together and that he has been at the house in the middle of the night and seen one or the other of them come out of the north bedroom to answer the door and then return. He also has seen the couple lying together on the couch to watch television.
Mrs. Halford and her daughter, Vicki Matthews, testified in opposition to the petition. Vicki Matthews testified that Green has slept in the south bedroom during the 13 months she has lived there and is living there because her mother is a diabetic. She further stated that ...