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In Re Marriage of Sappington

OPINION FILED APRIL 19, 1985.

IN RE MARRIAGE OF WARREN ARTHUR SAPPINGTON, APPELLANT, AND ANNA MARIE SAPPINGTON, APPELLEE.


Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County, the Hon. C. Joseph Cavanagh, Judge, presiding.

CHIEF JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 31, 1985.

On January 26, 1979, a judgment was entered in the circuit court of Sangamon County dissolving the 30-year marriage of plaintiff, Warren Arthur Sappington, and the defendant, Anna Marie Sappington. The judgment incorporated a separation agreement which provided that plaintiff was to pay defendant $750 per month in maintenance payments. In October of 1981, plaintiff sought 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 he alleged that defendant was cohabiting with Mr. Lyle Montgomery on a "resident, continuing conjugal basis." Montgomery alleged that he is impotent. The circuit court held that section 510(b) requires proof of acts of sexual intercourse or the right to sexual intercourse and since there was no evidence of sexual intercourse or any indication of attraction between defendant and Montgomery tending toward the establishment of a sexual relationship, he denied plaintiff's request to terminate maintenance payments. Plaintiff appealed to the appellate court. The appellate court, in a divided opinion, affirmed the circuit court. (123 Ill. App.3d 396.) The appellate court held that a sexual relationship was an essential element of a conjugal relationship as contemplated by section 510(b). (123 Ill. App.3d 396, 399.) It also held that since the trial judge's finding that there was no sexual relationship between the defendant and Montgomery was not against the manifest weight of the evidence, the trial judge had not erred in denying plaintiff's request to terminate maintenance. In a lengthy dissent, the dissenting justice stated that the majority had erred in finding that a conjugal relationship necessarily includes sexual intercourse, that he believed an impotent male was capable of a conjugal relationship and that the trial court had erred in finding that a conjugal relationship did not exist in this case. 123 Ill. App.3d 396, 400 (Barry, J., dissenting).

The record reveals that defendant and Montgomery had known each other for 12 years. Subsequent to both of their respective divorces, they attended approximately 20 singles dances and danced together on occasion. Thereafter, Montgomery began living in the Sappington's former marital residence, which was acquired by defendant as part of her property settlement. The home has two stories. On the upper level, there is a master bedroom, a second bedroom, a room with a television which has also been used to sleep in, and a bathroom. Montgomery began occupying the master bedroom, and he and the defendant have lived in the home alone now for more than two years. The defendant alleged that she occupies the second bedroom or the room with the television. There is no evidence in the record of any intention to terminate their present living arrangement.

Defendant testified that she charged Montgomery $120 per month for rent but stated that she did not declare this money as rental income on her tax returns. Montgomery testified that there was no formal arrangement for rent but that he paid in cash as necessary when household bills had to be paid. He testified that he pays part of the utility bills, to have the paper delivered, and for the food he brings in himself.

The evidence shows that Montgomery has free access to the entire house. He has performed general maintenance jobs in and around the house since he moved in. He helps mow the lawn and rake the leaves. He has also assisted in patching the roof and has fixed a leaky faucet.

Montgomery eats his meals at the home, sometimes eating with the defendant, who cooks for them and then does their dishes. Defendant also does some of Montgomery's laundry.

Defendant and Montgomery often go out together socially. They go to church and eat afterwards at Bishop's, a restaurant in Decatur. They have gone many places together, including Fairview Park, the Republican Club, the Blue Mill Restaurant, and to Springfield, Illinois. They have taken two vacations to Florida together. On each trip, they occupied the same motel room while traveling to and from Florida and while vacationing in Florida.

Montgomery testified that the reason he moved in with defendant was to afford her protection because she was afraid of staying alone. On their birthdays and at Christmas defendant and Montgomery exchange gifts.

The record reflects the fact that both defendant and Montgomery handle their own limited business affairs. Defendant testified that she has her own bank accounts and that Montgomery is not named in her will. The Sappingtons' daughter testified that her mother and Montgomery are not openly affectionate with one another. However, she also testified that she would not characterize her mother as an affectionate person in the outward physical sense.

Although defendant testified that she enjoys social activity with female acquaintances outside of her home, both Montgomery and defendant stated that they do not date or socialize other than with each other. They both testified that they have never slept in the same bed, even while occupying the same motel room in transit to and from Florida and while vacationing in Florida.

Montgomery testified that he has no interest in women and that he has been impotent for three or four years. He did state, however, that he had not told his doctor about his impotency until after he had received a subpoena to testify in this case. Dr. Barton, Montgomery's physician, testified that, based on what Montgomery told him, he would say that Montgomery was impotent. However, he stated that there is no objective medical test to establish impotency.

Both defendant and Montgomery denied having any sexual interest in each other and denied any sexual conduct toward each other; they maintain that their relationship is just that of friends.

This appeal involves 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 provides in pertinent part:

"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, ...


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