APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
ROBERT E. ARVIN, Respondent-Appellant
540 N.E.2d 919, 184 Ill. App. 3d 644, 133 Ill. Dec. 53 1989.IL.914
Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Cox, Judge, presiding.
JUSTICE DUNN delivered the opinion of the court. UNVERZAGT, P.J., and INGLIS, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN
Robert Arvin appeals from a circuit court order denying his petition to terminate maintenance payable to his former wife, Judith. Robert makes the following contentions on appeal: (1) that the trial court erroneously concluded that under the terms of the parties' marital settlement agreement, maintenance could only be terminated in the event of death or remarriage; (2) that Judith's conjugal cohabitation with a man on a resident, continuing basis should have resulted in termination; and (3) that Judith's substantial increase in income since the judgment for dissolution justified termination. We affirm.
The circuit court entered a judgment for dissolution of the parties' marriage on May 19, 1978. The judgment incorporates the terms of a marital settlement agreement previously entered into by the parties. With regard to maintenance, the agreement states in relevant part as follows:
"The husband agrees to pay to the wife as and for maintenance the sum of Two Hundred Dollars ($200.00) per month. The parties agree that the maintenance provided for herein shall be terminable upon the wife's remarriage or upon the wife's death."
The agreement also states that Robert was earning $21,500 per year at the time while Judith was earning $50 per week working part time.
Robert filed his petition to terminate maintenance on June 24, 1987. The circuit court held a hearing on the petition on September 21, 1987. Copies of Judith's Federal tax return for the years 1979-86 were introduced into evidence. The returns showed that Judith's net wages were $11,246 in 1979; $14,815 in 1980; $20,235 in 1981; $24,555 in 1982; $27,921 in 1983; $21,882 in 1984; $23,195 in 1985; and $25,272 in 1986. Judith testified that she was currently earning about $325 per week. In addition, she received $100 per month from renting a room in her house in Seattle. Judith stated that she filed each of her returns for the years 1980-86 between April and September 1987. The returns showed that she was entitled to refunds totaling $7,720 for those years.
Judith testified further that a man named George Hamilton resided in her home from November 1985 until March 1987. He did not pay any rent. Judith attempted to have sexual relations with him on several occasions between November 1985 and March 1986 but was unable to do so because he was impotent. Judith and Hamilton did not attempt to have sexual relations at any time after March 1986. Hamilton paid her about $100 as a contribution toward an oil bill, but this was the only contribution he made toward household expenses. Judith and Hamilton did not have a joint checking account and did not commingle funds in any manner. They occasionally went out together socially and occasionally slept in the same room. Judith testified that she and Hamilton seldom ate together and she never did his laundry.
The trial Judge subsequently issued a letter opinion in which he concluded that Judith had cohabited with George Hamilton on a resident, continuing, conjugal basis, which would ordinarily result in automatic termination of maintenance under section 510(b) of the Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 510(b)), which is now section 510(c) of the Act (see Pub. Act 85-1001, 1, eff. July 1, 1988). For purposes of this opinion, we will refer to this provision as section 510(b). The Judge concluded, however, that this was not a ground for termination in the present case because the settlement agreement only provides for termination in the event of Judith's death or remarriage. The trial Judge also ruled that the maintenance award could not be modified pursuant to section 510(a) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 510(a)) on the basis of Judith's increased income since dissolution because the maintenance award was permanent, not rehabilitative. Robert filed a timely notice of appeal from the denial of his petition.
Robert argues that Judith's cohabitation with George Hamilton on a resident, continuing, conjugal basis should have resulted in termination of his maintenance provision under section ...