APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
E. PETERSON, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
David Bramson, petitioner, sought termination of maintenance payments against his former wife, Suzan Bramson, in the circuit court of Cook County. Following a hearing where Mrs. Bramson was the sole witness, the trial court found her conduct amounted to cohabitation on a resident, continuing conjugal basis under section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1977, ch. 40, par. 510(b)). The court accordingly granted the petition to terminate Mr. Bramson's future maintenance obligations.
Mrs. Bramson appeals, contending that (1) the marital settlement agreement, by implication, precluded the trial court from applying section 510(b) of the Marriage Act; (2) the evidence does not show cohabitation on a resident, continuing conjugal basis; (3) Mr. Bramson acquiesced in the conduct of Mrs. Bramson and is estopped from seeking termination of maintenance; and (4) section 510(b) of the Marriage Act, as applied, is an unconstitutional infringement upon the marital settlement agreement and impairs the right to contract.
Mr. and Mrs. Bramson were married on February 7, 1963. They have three children, aged nine, seven and four. On January 16, 1974, the Bramsons were divorced. Incorporated into the divorce decree was a marital settlement agreement dated and signed by the parties on December 18, 1973. The agreement provided, among other things, that Mr. and Mrs. Bramson were to have joint custody of the children. The children were to reside permanently in the former marital home and the parents were to alternate residence with the children annually. Mr. Bramson was to pay the expenses of the marital home. Mrs. Bramson was to provide an apartment where the "off year" parent would live while the "on year" parent stayed with the children in the marital home. Visitation rights of the "off year" parent were to be liberal, frequent and by arrangement.
Whether the children were in the physical custody of Mr. or Mrs. Bramson, Mr. Bramson was to pay all monies he had customarily paid prior to the divorce for the children's support and maintenance. Mr. Bramson also was to pay Mrs. Bramson $11,000 per year maintenance. According to the agreement, these payments continued on monthly installments until either (a) the remarriage of Mrs. Bramson, (b) the death of Mrs. Bramson, or (c) in the event of Mr. Bramson's death, the first payment to Mrs. Bramson from an insurance trust.
The agreement further provided that in the event of remarriage, any necessary adjustment would be made "consistent with the intents, methods and purposes of this agreement."
When Mr. Bramson remarried, he and his wife no longer intended to occupy the "off year" apartment. According to Mrs. Bramson, during the summer of 1977 she talked to Mr. Bramson about moving into Jack Galprin's apartment for a temporary period of time; he said fine, go ahead. At the time of their divorce, they had also discussed living with people and decided this would be acceptable so long as the children knew the other party.
In September 1977, Mrs. Bramson moved from the "off year" apartment to the residence of Jack Galprin. She was residing there on October 1, 1977, when the new Marriage and Dissolution of Marriage Act went into effect. In January 1978, upon receiving service of Mr. Bramson's petition to terminate maintenance, Mrs. Bramson moved to the apartment of a female friend.
Mrs. Bramson testified that while she lived with Galprin they shared the same bed. Galprin would also sleep over from time to time while she lived at the marital home during August 1977. After moving out of Galprin's apartment, Mrs. Bramson returned to stay overnight about 20 times. They also have taken trips together. However, both she and Galprin dated other people.
Mrs. Bramson shared expenses with Galprin; she paid for most of the food, shared the expense of a housekeeper, paid $100 to $150 per month for housing and paid a plumbing bill when she caused some damage. With the exception of holiday gifts, she bought her own clothes. Bramson considered herself to be sharing expenses as would any roommate. She did most of the cooking and Galprin handled most repairs.
When the children visited their mother at Galprin's apartment, she provided their food, bus tokens and paid entertainment expenses. Bramson moved in with Galprin, in part, because his home was large enough for comfortable visitation with the children.
Mrs. Bramson put her own name on Galprin's door and never went by or used the name Mrs. Galprin. Her voter's registration listed the marital home as her address. Other identification listed other addresses. In accordance with the settlement agreement, Mrs. Bramson intended to return to the marital home on August 15, 1978. She testified that her residence with Galprin was designed to be temporary.
Based on this evidence and the briefs and arguments of the parties, the trial court ruled from the bench that:
"The question was, whether a woman who lives with another man not her husband can still get alimony from her present husband. I ...