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In Re Marriage of Reeder

OPINION FILED JULY 29, 1986.

IN RE MARRIAGE OF KATHRYN JEANETTE REEDER, PLAINTIFF-APPELLEE, AND ROBERT O. REEDER, DEFENDANT-APPELLANT.


Appeal from the Circuit Court of Jackson County; the Hon. William H. South, Judge, presiding.

JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Defendant, Robert O. Reeder, appeals from a judgment of the circuit court of Jackson County which denied his motion to terminate maintenance payments to plaintiff, Kathryn Reeder; found that he owed plaintiff $2,725 in maintenance arrearages; and awarded $1,500 in attorney fees to plaintiff's counsel. Defendant contends that the circuit court's judgment is against the manifest weight of the evidence and that its award of attorney fees is unfair and excessive. Because we find these contentions to be without merit, we affirm.

Defendant is 46 years old and is employed by Consolidated Coal Company. Plaintiff, age 43, is a cook. Neither has a post-high school education. The parties were married July 25, 1959, and lived together until their separation in April 1984. They have two children, both adults, and two grandchildren. Their marriage was dissolved by a judgment entered by the Jackson County circuit court on December 5, 1984. At that time, the court found that defendant was capable of earning in excess of $37,000 per year but that plaintiff, having only recently reentered the job market, was employed at the minimum wage. The court's judgment of dissolution ordered, inter alia:

"That Defendant shall pay to the Plaintiff the sum of $350 per month as permanent, periodic maintenance until the sale of the former marital residence is completed, and thereafter the sum of $500 per month, as permanent, periodic maintenance, such maintenance to commence December 1, 1984, and be payable on the first of each succeeding month thereafter until the death of Plaintiff, her statutory disqualification to receive such maintenance in a proceeding of this kind, or the further Order of this Court."

Within 30 days of entry of the judgment, defendant filed a motion requesting a rehearing as to the amount of maintenance awarded on the grounds that he had been stricken with a heart problem, could not work and was on disability. The record shows that defendant was unable to work at all in December of 1984, January of 1985 and for the first 20 days of February 1985. During this period he received disability payments of approximately $351, after deductions, every two weeks.

Defendant made none of the maintenance payments to plaintiff as ordered by the judgment of dissolution, even after the former marital residence was sold in May 1985. Plaintiff received only a single check for $75 in March of 1985 as "partial payment." On March 26, 1985, plaintiff therefore petitioned the court for an order requiring defendant to show cause why he should not be held in contempt of court. By order dated March 28, 1985, that petition was granted, and a rule to show cause issued. A hearing thereon was to be held May 16, 1985. On May 15, 1985, however, defendant filed a motion to terminate maintenance pursuant to section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 510(b)), alleging that plaintiff was cohabiting with another person, Thomas Gutjahar, on a resident, continuing, conjugal basis.

The rule to show cause and defendant's motions for rehearing and for termination of maintenance were ultimately taken up by the court at a consolidated hearing held July 11, 1985. At that hearing, testimony was presented by plaintiff; defendant; defendant's sister, Virginia Taylor; Virginia Taylor's husband, William; and Thomas Gutjahar. Certain documentary exhibits were introduced on plaintiff's behalf. In addition, evidence was presented regarding the hours expended by plaintiff's counsel on these various matters and the rates at which plaintiff was charged.

Based upon the foregoing evidence, the circuit court entered a judgment on August 16, 1985, which granted defendant's motion for rehearing and reduced his maintenance obligations for December 1984, January 1985, and February 1985, from $350 per month to $250 per month. That judgment also held that defendant owed plaintiff $2,725, which sum represented the maintenance arrearages due through July 1985, and that he owed plaintiff's counsel $1,500 in attorney fees. Finally, because the court expressly found that plaintiff had not cohabited with another person on a resident, continuing, conjugal basis, defendant's motion to terminate maintenance payments was denied. Defendant now appeals only from those portions of the August 16 judgment denying his motion to terminate maintenance payments, requiring him to pay maintenance arrearages which accrued after his motion to terminate was filed, and holding that he must pay plaintiff's attorney fees.

Section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 510(b)) 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 * * * if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis."

Defendant's principal argument on appeal is that the circuit court's refusal to terminate his maintenance obligations to plaintiff pursuant to this provision is contrary to the manifest weight of the evidence. We disagree.

• 1, 2 The legislative intent behind section 510(b) is "to provide for the termination of an ex-spouse's obligation to pay future maintenance whenever the spouse receiving the maintenance has entered into a husband-wife relationship with another, whether this be by legal or other means." (In re Support of Halford (1979), 70 Ill. App.3d 609, 612, 388 N.E.2d 1131, 1134.) The termination of maintenance upon the recipient's cohabitation with another person on a resident, continuing and conjugal basis "was most likely added to section 510(b) to end the inequities caused when a former spouse had in fact entered into a husband-wife relationship, although not formalized legally, and was still entitled to maintenance merely because Illinois does not recognize common law marriages." (In re Marriage of Olson (1981), 98 Ill. App.3d 316, 320-21, 424 N.E.2d 386, 396, quoting In re Marriage of McGowan (1980), 84 Ill. App.3d 609, 614, 405 N.E.2d 1156, 1160-61.) Consistent with this view, termination of maintenance because of resident, continuing and conjugal cohabitation by the recipient spouse requires a showing that she is involved in a de facto husband-wife relationship. (See In re Marriage of Clark (1983), 111 Ill. App.3d 960, 961, 444 N.E.2d 1369, 1370.) A "lesser involvement" by the spouse receiving maintenance is insufficient to meet the standards of section 510(b). See In re Marriage of Bramson (1980), 83 Ill. App.3d 657, 663, 404 N.E.2d 469, 473.

• 3 Section 510(b) does not represent an attempt by the legislature to control public morals. (In re Marriage of Bramson (1980), 83 Ill. App.3d 657, 663, 404 N.E.2d 469, 473.) Our supreme court has now recognized that proof of sexual intercourse or sexual conduct between the spouse receiving maintenance and the person with whom she is living is unnecessary to establish cohabitation on a conjugal basis under this provision. (In re Marriage of Sappington (1985), 106 Ill.2d 456, 468, 478 N.E.2d 376, 381.) At the same time, the right of the recipient spouse to maintenance is not voided simply because she lived with another man. In re Marriage of Bramson (1980), 83 Ill. App.3d 657, 663, 404 N.E.2d 469, 473.

• 4 The requirement of a de facto husband-wife relationship is related to the underlying rationale for maintenance. Maintenance is predicated upon a need for support by the spouse who is to receive maintenance. (In re Marriage of Sappington (1985), 106 Ill.2d ...


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