APPEAL from the Circuit Court of Tazewell County; the Hon.
CHARLES J. PERRIN, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the Circuit Court of Tazewell County which denied the petition of the defendant, Richard L. Cohenour, which prayed that maintenance payments which he had been ordered to make to his ex-wife, the plaintiff, LeRae Cohenour, be terminated.
The plaintiff and the defendant were divorced on May 10, 1973. The decree of divorce ordered the defendant to pay alimony to the plaintiff in the sum of $400 per month. On April 4, 1978, an order was entered increasing these payments to the sum of $510 per month. On April 8, 1980, the defendant filed a petition to terminate maintenance. The petition was brought pursuant to that provision of the Illinois Marriage and Dissolution of Marriage Act which provides:
"The obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis." Ill. Rev. Stat. 1979, ch. 40, par. 510(b).
This appeal presents the sole question as to whether the trial court was correct in its denial of the defendant's petition. In determining this question it is necessary that there be an examination of both the pertinent law and the evidence adduced at the hearing on the petition.
Turning our attention to the law, we concern ourselves with that portion of the statutory provision which we have cited and which reads as follows:
"The obligation to pay future maintenance is terminated * * * or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis." (Emphasis added.) Ill. Rev. Stat. 1979, ch. 40, par. 510(b).
The appellate court from the Fifth District specifically addressed itself as to the meaning of the above-quoted language and made the following determination:
"We believe that this statute contemplates acts of sexual intercourse as part of the full or de facto husband-wife relationship which it seeks to describe. The term `cohabitation' means living together as husband and wife, but does not necessarily imply sexual intercourse. (Rasgaitis v. Rasgaitis (1952), 347 Ill. App. 477, 107 N.E.2d 273.) `Conjugal basis,' however, implies the assertion of conjugal rights which have been defined both as `the right which husband and wife have to each other's society, comfort and affection' (Black's Law Dictionary 374 (4th ed. rev. 1968)) and `the right of sexual intercourse between husband and wife' (Webster's Third New International Dictionary 480 (1971)). The statute further requires that the cohabitation be on a resident and continuing basis." In re Support of Halford (1979), 70 Ill. App.3d 609, 613, 388 N.E.2d 1131, 1134.
• 1, 2 Since continuing sexual intercourse must occur between parties one of whom is receiving maintenance payments from an ex-spouse before the pertinent provision of section 510(b) is triggered, thereby eliminating the obligation to continue maintenance payments, such acts of sexual intercourse must be proved. We are aware of the fact that few couples admit to having out-of-wedlock intercourse, nor do they publicly engage in such conduct, but on the contrary, they attempt to conceal their actions. Such being the case, it has long been the rule that out-of-wedlock intercourse can be proved by circumstantial evidence. See Zimmerman v. Zimmerman (1909), 242 Ill. 552, 90 N.E. 192, and Wolfrum v. Wolfrum (1955), 5 Ill. App.2d 471, 126 N.E.2d 34.
Having set forth the applicable law, attention will now be directed to the facts presented to the trial court by testimony and evidence depositions.
LeRae and her son, Jeff, who was 15 years old in 1975, moved into a residence at 241 Sumerset in New Lenox, Illinois. The house was a trilevel structure consisting of six rooms, two of which were bedrooms. In the latter part of 1977 Al Escobedo moved into the plaintiff's residence. LeRae had met Escobedo at the Worldwide Church of God. Escobedo continued to live at the plaintiff's home up to and through the proceedings to terminate maintenance. It is uncontested:
(1) That Escobedo claimed plaintiff's home at 241 Sumerset in New Lenox as his legal residence for employment, tax, and ...