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08/17/94 MARRIAGE JOHN LIMA PETITIONER-APPELLANT

August 17, 1994

IN RE MARRIAGE OF JOHN LIMA, PETITIONER-APPELLANT, AND JUDITH LIMA, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Kane County. No. 93-D-1717. Honorable Donald J. Fabian, Judge, Presiding.

Rehearing Denied September 20, 1994.

PECCARELLI, Inglis, Bowman

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

This matter is before the court on an interlocutory appeal by petitioner, John Lima (John), pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)), from an order on January 6, 1994, awarding the exclusive possession of the marital residence, pursuant to section 701 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/701 (West 1992)), to respondent, Judith Lima (Judith).

John filed a petition for dissolution and other relief on December 28, 1993. Judith filed a counterpetition for dissolution and other relief, and a petition for exclusive possession of the marital residence and other relief, on January 6, 1994. The court heard the testimony proffered by the parties and ordered the exclusive possession of the marital residence to Judith. We reverse.

John, in his petition, alleged the parties were married on August 14, 1974. Judith, in her counterpetition, alleged the parties were married on September 14, 1974. In either event the parties have been married for about 20 years.

Judith testified on direct examination that the parties have two children, 18 and 17 years old, who reside with Judith in the marital residence in Gilberts, Illinois. She has been a diabetic since 1991, takes 58 units of insulin each day, testified that stress causes diabetic reactions, and that she probably had five diabetic reactions a week during the three months preceding the hearing. Since December 28, 1993, and before the hearing on January 6, 1994, after John filed for dissolution, her blood sugar levels dropped. She regulates her blood sugar levels. She has not changed her insulin intake nor has there been a change in her diabetic reactions. She testified that on August 4, 1990, John had sexual intercourse with her without her consent. During intercourse Judith told John she did not wish it to occur and when she told him he kept going.

Judith testified on cross-examination that prior to August 1990 John was sleeping in the basement and she was sleeping in themaster bedroom. Although they were usually sleeping in different locations in the house they would sometimes sleep together and would have intercourse prior to August 4, 1990. On August 4, 1990, John did not hold her down although his body was on top of her. She felt used and she felt bad. After intercourse Judith told John to leave the room, and he left. Prior to August 4, 1990, Judith did not place any restrictions on John regarding sexual conduct.

John continued to live in the house after August 4, 1990. Judith prepared meals and John ate them in the house, they watched TV together, and Judith did John's laundry until November 1992. John was not physically abusive to Judith prior to August 1990 nor subsequent to that date. Subsequent toAugust 1990 and prior to November 1992 the door to the master bedroom was unlocked and open a little bit. John would come into the master bedroom every night to say goodnight, and then walk out. He did not make a sexual advance towards her.

The court, sua sponte, examined Judith. During this inquiry Judith testified the diabetic reactions manifest themselves from stress and dieting "properly." When she gets low blood sugar she cannot function mentally or physically, she can't think of what she has to do, and her legs give out. In response to the court's questions Judith now testified diabetic reactions occurred more frequently during the past year, and since the filing of the dissolution proceeding they are getting worse and she gets a few reactions a day.

Judith, called as an adverse witness, upon cross-examination testified as follows:

"BY MR. CHAPSKI:

Q. Now, Mrs. Lima, you testified earlier this morning at the temporary restraining ...


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