Appeal from the Circuit Court of Sangamon County; the Hon. C.
Joseph Cavanagh, Judge, presiding.
JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the circuit court of Sangamon County which declined to terminate the maintenance payments which plaintiff Warren Sappington was making to his former wife, Anna Marie Sappington.
After 30 years of marriage a judgment dissolving the marriage of the parties was entered on January 26, 1979. The judgment incorporated the separation agreement providing the plaintiff, Warren Sappington, pay monthly maintenance to Anna Marie Sappington, defendant, of $750. In October 1981, the plaintiff endeavored to terminate the maintenance payments under section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(b)), because the defendant was cohabitating with Lyle Montgomery on a resident, conjugal basis. Several hearings were held at which 11 witnesses testified. The evidence tended to show that Lyle "Archie" Montgomery has lived with Anna Marie since November 1979. The house which Anna Marie and Lyle occupy is the former marital residence of Warren and Anna Marie. It is a two-story house with three rooms and a bath on the second floor. Lyle Montgomery has access to the whole house. He helps mow the lawn, rakes leaves, patches the roof, fixes faucets and performs general maintenance about the house and has been doing those things since he has been there. He takes his meals there and sometimes takes his meals with Mrs. Sappington, who also cooks for him. She does his dishes and some of his laundry. He has his clothing there. He goes out socially with Anna Marie in addition to going to church with her. After church, Anna Marie and Lyle often eat at Bishop's, a restaurant in Decatur. Lyle and Anna Marie have been many places together, including, but not limited to, Fairview Park, Republican Club, Blue Mill Restaurant, and Springfield, Illinois. They have taken two vacations to Florida together. While traveling to and from Florida, they occupied the same motel room and while they were in Florida, on each occasion they occupied the same room. He denied having a formal arrangement for the payment of expenses, but he maintained that he does pay for the privilege of living with Anna Marie. He says he pays part of the utilities and the paper boy in addition to bringing in food. They often shop for food and share expenses. He says he originally moved in to afford her protection. She was afraid of staying alone. They exchange gifts at Christmas and on birthdays. They commingle foods.
According to Lyle Montgomery, he has no interest in women and has been impotent for three or four years. He admitted, however, that he made no complaint about impotency until after the petition to terminate maintenance had been filed. It also appeared that Anna Marie took care of her own business affairs, had her own bank accounts in her name only and had not included Lyle in her will. According to her testimony, Lyle paid rent and attended social functions with her as a friend. Anna Marie and Lyle each denied having any sexual interest in the other and denied any sexual conduct toward the other, claiming instead their relationship was solely that of friends.
The court denied the request to terminate maintenance payments and this appeal follows.
This case involved the interpretation and application of section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(b)) which, in pertinent parts, provides:
"Unless otherwise agreed by the parties in a written separation agreement set forth in the judgment or otherwise approved by the court, 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."
On this appeal the plaintiff argues the term "conjugal" as used in the statute does not necessarily include sexual intercourse in the usual manner. Although stated as a separate issue, the plaintiff further argues that since sexual intercourse is not a necessary element of cohabitation on a conjugal basis, impotency does not prevent the application of the statutory terminating conditions.
The statute under consideration is of fairly recent vintage and has no antecedents which might afford some well-established meanings for the terms employed. In common and everyday parlance many of our expressions about marriage and sex are vague euphemisms. As is pointed out in the briefs, there are no committee comments regarding this section of the statute, so that in determining the intention of the legislature we do not have the benefit of any contemporaneous exposition.
According to In re Marriage of Bramson (1980), 83 Ill. App.3d 657, 404 N.E.2d 469, the addition to the statute terminating the recipient's right to receive maintenance was enacted in response to the holding in Atwater v. Atwater (1974), 18 Ill. App.3d 202, 309 N.E.2d 632. In Atwater the court held since Illinois does not recognize common law marriages, such a marriage by an alimony recipient did not terminate the right to receive alimony.
The plaintiff has directed our attention to several definitions of "conjugal" in support of his contention that neither a sexual relationship nor sexual intercourse is an essential element of the definition of the term. For example, Webster's Third New International Dictionary defines conjugal "of or relating to marriage, the married state or married persons in their mutual relations; matrimonial; connubial." From the failure of this definition and other similar definitions to include any mention of sex, sexual relationship or sexual intercourse, the plaintiff concludes that the sexual relationship is not an element of the conjugal relationship or conversely that the relationship can have a conjugal basis even though there is an absence of any sexual relationship. However, not cited by the plaintiff is the definition in Webster's Third New International Dictionary of the term "conjugal rights" which are defined as "the sexual rights or privileges implied by and involved in the marriage relationship; the right of sexual intercourse between husband and wife." From the latter definition it would appear that "conjugal" refers primarily to the sexual relationship between parties.
According to In re Marriage of Bramson (1980), 83 Ill. App.3d 657, 404 N.E.2d 469, Schoenhard v. Schoenhard (1979), 74 Ill. App.3d 296, 392 N.E.2d 764, and In re Support of Halford (1979), 70 Ill. App.3d 609, 388 N.E.2d 1131, cohabiting on a residential continuing conjugal basis refers to the equivalent of a husband and wife relationship absent the legal formalization. While such a relationship may be subject to variation, the commonly accepted characterization of husband and wife does have a sexual component or basis. We believe that parties living together on a conjugal basis as described in the statute necessarily includes a sexual relationship. This view is supported by In re Marriage of McGowan (1980), 84 Ill. App.3d 609, 405 N.E.2d 1156, which plaintiff believes was wrongly decided. However, we are not inclined to depart from our holding in McGowan and the cases cited therein.
The trial court in its order found, "There is no evidence of sexual intercourse between Anna Marie Sappington and Lyle Montgomery, nor does the evidence show any indication of attraction between them tending toward the establishment of a sexual relationship."
Since the trial court found there was no sexual relationship between Anna Marie and Lyle, an essential element of a conjugal relationship, we find it unnecessary to decide in this opinion the nature and characteristics of a sexual relationship sufficient to meet the statutory condition.
The plaintiff has also argued that the evidence does establish a conjugal basis for the relationship between Anna Marie and Lyle, notwithstanding the trial court's conclusion to the contrary. We disagree.
As a general rule, circumstantial evidence will suffice and specific eyewitness testimony will seldom be available. Nevertheless, after examining the evidence in some detail, we do not believe the trial court's findings ...