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In Re Marriage of Mcgowan

OPINION FILED MAY 9, 1980.

IN RE MARRIAGE OF THOMAS A. MCGOWAN, PETITIONER-APPELLANT, AND MARIE B. MCGOWAN, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. WILLARD J. LASSERS, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

This action involves the provisions of the new Marriage and Dissolution of Marriage Act (Marriage Act) as they pertain to the modification and termination of maintenance of a former spouse. (Ill. Rev. Stat. 1977, ch. 40, pars. 510(a) and 510(b).) Petitioner appeals from the denial of his petitions to modify the divorce decree entered in his marriage to respondent, by ordering the termination of maintenance payments to her and relieving petitioner of his obligation to insure his life for respondent's benefit. On appeal, petitioner contends that (1) the trial court erred in its determination that the evidence was insufficient to terminate maintenance, and (2) petitioner was denied due process of law by the court's refusal to allow evidence in support of his petition to terminate alimony. We affirm. The pertinent facts follow.

Petitioner's initial petition alleged that the parties were divorced on January 12, 1973, and that he was ordered to pay $500 per month in maintenance, based upon his net income of $1750 and the fact that respondent was then unemployed. Petitioner was also ordered to retain a $5000 life insurance policy on his life with respondent named as irrevocable beneficiary. Petitioner further alleged that respondent was employed and was then living with a man, not her husband, on an "open and notorious" basis. In his supplemental petition, petitioner alleged substantial changes in his financial circumstances due to his remarriage, that the original divorce decree was entered when respondent was in poor health and unable to work, and that respondent was now healthy, working and living in an apartment in which her utilities, telephone and 40 percent of her rent are paid by her landlord. In a subsequent supplemental petition, petitioner alleged that he had paid over $40,000 as maintenance since the divorce and that the basis for maintenance no longer existed. Petitioner asked that the divorce decree be modified by terminating his maintenance payments to respondent.

After testifying to the terms of the divorce settlement, petitioner called respondent as a witness under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1977, ch. 110, par. 60.) Although she had been unemployed at the time of the divorce, respondent was now a part-time employee of the United States Census Bureau, earning $3.96 per hour for conducting interviews. She was also reimbursed for her expenses. During 1978 respondent had earned $2200 and her income for the first five months of 1979 was about $900. Respondent's assets consisted of some stocks and bonds and approximately $19,000 in savings, all of which were part of the divorce settlement. Respondent maintained two residences, living at her father's home about 20 percent of the time and spending the rest of her time in an apartment she rented from a long-time friend, Dr. John T. Chedester. Her apartment rental had been increased to $275 per month in May 1979. Prior to that time her monthly rent was $250 but, until November 1978, she had received a $100-per-month credit for doing occasional laundry, cleaning and reception work for Dr. Chedester's dental office.

Respondent's apartment was on the second floor of the building which contained Dr. Chedester's offices. Her apartment adjoined the doctor's living quarters, which was a single room with two closets and a private entrance. Respondent had been in the doctor's apartment, but estimated that the most recent visit was during the summer of 1978. The doctor had a key to respondent's apartment because he was her landlord, she testified, but she did not have access to the doctor's apartment because he kept the door locked and she had no key. There was no bathroom in the doctor's apartment, respondent continued, and he used the facility on the first floor and in the basement, although he had used her bathroom on occasion.

Dr. Chedester frequently visited respondent in her apartment and the two sometimes ate meals together. The doctor would periodically remain to visit a while in the evening after dinner. Respondent also testified that the doctor kept no clothes in her apartment, but she did have some of his books, which she had borrowed for her work. He had also borrowed some money from respondent a few times and had repaid her, with interest.

William Witsman, a licensed private detective, was hired by petitioner's attorney to view respondent's apartment pursuant to a court order. Arriving at the building unannounced, Witsman was not allowed to see respondent's apartment and arranged to return the following day. When he returned, Witsman was shown respondent's apartment. He saw no men's clothing or toiletries, but saw some of Dr. Chedester's books.

Dr. Chedester testified that his living quarters measured about 12 feet by 12 feet. He had lived there for about 20 years and his mother had occupied the larger area now rented by respondent. His mother had become quite senile prior to her death in 1971, which prompted the doctor to install the lock on his door. He had the only key. There was a shower in the basement but he admitted that he sometimes used respondent's bathroom. Respondent moved into the apartment in July of 1977 and lived there only part of the time, spending the rest of her time at her father's home. The doctor also owned a farm which he had been renting to an older couple. After the death of the husband, he allowed the widow to live on the farm for a low rental in order to keep it occupied. The doctor had a trailer on the farm for himself, and he lived there in the summer. Dr. Chedester further testified that he had known respondent since the early 60's. He knew her father well and visited him both before and after respondent was divorced. The doctor had also lent some money to respondent, as well as to another tenant, a dentist with offices on the first floor of the building.

Respondent testified on her own behalf that her mother, who was deceased, was a very good friend of Dr. Chedester's mother. Respondent had known the doctor since early in the 1960's. They had visited her father many times and the three of them had taken some short trips into Wisconsin, although they never stayed overnight. She had also visited the doctor's farm, but had never eaten a meal or spent the night in either the farmhouse or the doctor's trailer. Respondent considered him a friend who would help her in times of difficulty. She received no Christmas or birthday gifts from the doctor and testified that she was not living with him in a husband and wife relationship.

Petitioner had also questioned respondent about a 1973 credit application which listed a monthly income of $500 and her former attorney as her employer. Respondent explained that she was unemployed in 1973, but received her $500 monthly maintenance payment and therefore listed her attorney to verify the source of income.

After hearing all of the evidence, the trial court found that respondent and the doctor were not living together in a "continuing conjugal relationship" and that there had not been any substantial change in respondent's circumstances. Petitioner's requests for a termination or modification of alimony were then denied and he has appealed.

OPINION

Petitioner first contends that the trial court's denial of termination or modification of maintenance was arbitrary and capricious and contrary to law under section 510 of the Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 510). Section 510 provides in pertinent part:

"(a) Except as otherwise provided in paragraph (f) of Section 502, the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to the filing of the motion for modification with due notice by the moving party ...


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