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In Re Marriage of Naguit





APPEAL from the Circuit Court of St. Clair County; the Hon. DENNIS J. JACOBSEN and the Hon. JOSEPH F. CUNNINGHAM, Judges, presiding.


This appeal involves two cases which have been consolidated for argument and opinion. The first (cause No. 81-75) concerns the marriage of Efren C. Naguit, petitioner, and Cheryl D. Naguit, respondent. The second (cause No. 81-152) pertains to a forcible entry and detainer action brought by respondent against James E. Scrivner and Jeannette R. Scrivner, defendants. Both of these cases share as a common link disputes involving a house located at 812 West Lakeshore Drive, O'Fallon, Illinois (O'Fallon residence). For purposes of clarity and convenience, the facts and issues of each case will be discussed separately.

On September 8, 1978, petitioner, Efren C. Naguit, and respondent, Cheryl D. Naguit, were married. On November 29, 1978, petitioner filed for a declaration of invalidity of marriage (formerly referred to as an annulment) pursuant to section 301 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 301). The petitioner alleged that respondent committed fraud involving the essentials of the marriage and lacked the physical capacity to consummate the marriage. On June 20, 1979, respondent filed a cross-petition for temporary maintenance and for legal separation. The respondent subsequently replaced her request for a legal separation with a cross-petition seeking dissolution on the grounds of mental and physical cruelty. On February 25, 1980, respondent was awarded temporary maintenance.

On June 2, 1980, the petitioner's request for a declaration of invalidity of marriage and respondent's amended petition for dissolution came on for hearing. Respondent voluntarily dismissed her petition for dissolution, and the trial court proceeded to hear evidence on the petition seeking to invalidate the marriage. At the close of petitioner's case, he requested leave to conform his pleadings to the proof by amending his petition to include two alternative counts seeking dissolution. The trial court allowed petitioner's motion to amend his pleadings and granted respondent's motion for a judgment in her favor regarding the petition for a declaration of invalidity of marriage.

On June 18, 1980, petitioner's request for dissolution was heard by the trial court and granted on the ground of respondent's mental cruelty. The hearing on the issues of property and maintenance was continued. On June 24, 1980, respondent appealed from an order of the trial court entered June 9, 1980, denying respondent's request for an increase in temporary maintenance, and the court's June 19, 1980, order granting the dissolution of marriage. This court dismissed respondent's interlocutory appeal as premature (cause No. 80-295).

The hearing on the issues of property and maintenance took place on November 5, November 24, and December 18, 1980. A final judgment of dissolution of marriage was entered on January 19, 1981. On February 10, 1981, respondent filed a notice of appeal. Seven days later, petitioner filed notice of a separate appeal challenging the trial court's denial of his petition for declaration of invalidity of marriage.

At trial, respondent was called as an adverse witness. She stated that she was 26 years of age, that she had been married previously in 1970 and had borne a daughter in 1972, and that she was divorced in 1973. She testified that she began to see petitioner on a social basis late in 1973 and that sometime in 1976 petitioner brought up the subject of marriage. According to respondent, petitioner spoke in terms of getting "married for convenience sake." Respondent declined the offer of marriage, but she and petitioner continued dating.

Respondent related that she suffered emotional and psychological problems during her first marriage which made it difficult for her to respond sexually to a man. She stated that she mentioned these sexual difficulties to petitioner but never discussed them in detail with either him or her parents. Respondent testified that prior to her marriage to petitioner, she had never sought treatment for her sexual problems. According to respondent, the day before she and petitioner were married she told him that she could not consummate the marriage, explaining to petitioner "that physically for me right now I cannot * * * be really married to you * * *." She stated that when petitioner responded that she should seek psychiatric help, she agreed and the marriage took place as planned. Respondent testified that she has never had any sexual relationship with the petitioner either before or after the marriage.

Respondent further testified that on September 5, 1978, she and petitioner signed an antenuptial agreement, which provided, inter alia, that petitioner would furnish a home for respondent and her daughter during the marriage. The agreement further provided for the disposition of certain property in the event of the death of either party. Respondent testified that at the time she signed the agreement she felt intimidated by the presence of "bank presidents and lawyers" and that she was under the impression that she was supposed to sign a will until the antenuptial agreement was presented to her. She also stated, however, that no one forced her to sign the agreement and that she signed it of her own free will. In its final judgment of dissolution of marriage the trial court expressly found that the antenuptial agreement was valid and noted that it contained no provision regarding dissolution of marriage.

Cletus Zotz, respondent's ex-husband, testified regarding his marriage with respondent. He stated that he and respondent began to have difficulties with their sexual relationship during the last year of their marriage but respondent never indicated that she had any particular problems with sexual intercourse.

Robert Nesler, respondent's father, said he was unaware of the exact nature of respondent's problems with her first husband. He testified that the marriage between petitioner and his daughter was "on one day and off the next." Mr. Nesler further related that he and petitioner discussed the pending marriage and that the petitioner expressed a willingness to marry respondent. Mr. Nesler said he told petitioner that "if you take the sex out of marriage * * * I think she'd marry you tomorrow."

Petitioner, a 49-year-old physician, testified that he became acquainted with respondent in his role as respondent's family doctor when she was about 12 years of age. He related that he began dating respondent in late 1973 and first discussed marriage with her in 1977. According to petitioner, he and respondent began to make marriage plans in 1978 but respondent kept postponing the date. Petitioner and respondent eventually were married on September 8, 1978, in Reno, Nevada; and petitioner stated that upon their return, respondent and her daughter moved into the O'Fallon residence, which petitioner had purchased prior to the wedding. About two weeks later, after vacating his former apartment, petitioner also moved into the house.

Petitioner denied ever discussing a marriage of convenience with respondent or her family and stated that he never agreed to a sexless marriage. He testified the only sexual problem which respondent discussed with him was the fact that respondent's first husband had once beaten and sexually attacked her. Regarding the conversation he had with respondent the day before the wedding, petitioner testified that respondent's sexual problem was explained to him "more or less in general terms, that she didn't think she could function as a housewife in the sexual context of the word * * *."

After their marriage, respondent began psychotherapy. Petitioner related that about a month after the wedding, he asked respondent whether she felt the sessions with the psychiatrist were helping her to overcome her sexual problems, at which time respondent became belligerent and harsh words were exchanged. According to petitioner, whenever petitioner brought up the subject of respondent's sexual problem thereafter she would reply that "there is nothing to talk about." Petitioner testified that about the third or fourth week of marriage respondent ceased fixing his meals and frequently stayed out by herself late at night. He said respondent lived upstairs at the O'Fallon residence while he resided downstairs during the time they lived there together.

Petitioner testified that after their marriage he had made several physical advances towards respondent, but when he tried to hug and kiss her, she would push him away. He related that eventually the frustration of being rejected caused him to cease his attempts at physical contact with respondent. Petitioner recalled three specific instances when respondent had rebuffed his efforts to establish physical intimacy with her. He stated that his wife's repeated rejection of him coupled with her late night excursions caused him to lose sleep. He indicated that his marital situation aggravated his hypertension, may have resulted in a heart condition called ventricular hypertrophy, and interfered with his ability to perform as a physician.

At the conclusion of the hearing, petitioner moved to conform his pleadings to the proof and was allowed to amend his petition seeking to invalidate the marriage to include as an alternative a request for dissolution on the grounds of both desertion and mental cruelty. The trial court, upon motion by respondent, dismissed petitioner's request for a declaration of invalidity, finding that no fraud involving the essentials of the marriage was shown to exist and further finding that any physical incapacity to consummate the marriage was not of a sufficient duration to warrant a declaration of invalidity.

At trial, respondent presented the testimony of four witnesses. Sharon Link, the medical-legal clerk at St. Elizabeth's Hospital in Belleville, Illinois, testified that hospital records showed that respondent was admitted as a patient five times in 1979 for various ailments. Petitioner was briefly examined as an adverse witness concerning his knowledge of respondent's medical problems and reiterated that respondent continually rebuffed his sexual advances. Anne Nesler, respondent's mother and a licensed practical nurse, testified that she had administered a drug to her daughter which was prescribed by petitioner. Also, respondent testified in her own behalf.

Respondent stated that, pursuant to petitioner's request, she began psychotherapy for her sexual problems with Dr. Robert J. Corday soon after the marriage. She indicated that petitioner, who at first supported her psychotherapy, became hostile toward the treatment. She testified that from the beginning of their marriage there were difficulties and related that when petitioner insisted that she be more emotional, her reaction was to become very defensive.

Respondent also testified that a few days after the wedding petitioner told her "if it doesn't work out we can always get divorced." There was no further discussion of possible legal action to terminate the marriage until respondent was informed by a friend that petitioner had filed a petition seeking to invalidate the marriage. Respondent stated that when she confronted petitioner with this information, petitioner informed her that he wanted out of the marriage because he wanted a closer marriage with more emotional involvement and that he was disappointed with the results of her psychotherapy. She testified, however, that petitioner never stated in express terms that he desired a sexual relationship with her.

On cross-examination, respondent stated that her physical ailments were not the sole reason she would not consummate the marriage. She explained that the absence of a sexual relationship with petitioner was due to her understanding that they both agreed to a sexless marriage. She denied telling petitioner that there was nothing to talk about regarding her sexual problem and also denied pushing petitioner away. She said petitioner never placed her name on the title to the O'Fallon residence and that when petitioner sold the house, he placed in storage her personal belongings which were on the premises.

Respondent introduced the evidence deposition of Dr. Robert J. Corday, who diagnosed her condition as a depressive neurosis. Dr. Corday stated that respondent's prognosis was good but that it might take a couple of years of psychotherapy before she was completely cured.

Between November 5, 1980, and December 18, 1980, the trial court conducted a hearing on the property issues. On the first day of this hearing petitioner testified regarding his finances, income and expenses. His 1979 income tax return showed a total income of about $137,000. Petitioner introduced a list of checks payable on respondent's behalf for various debts she incurred. These checks totaled over $20,000 and showed that petitioner had paid temporary support payments over $4,000. Petitioner also testified that his ...

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