dissenting:
I agree that the trial judge’s findings of fact do not appear to be against the manifest weight of the evidence. He indicated that he felt compelled and bound, and properly so, to follow the appellate case law in Illinois which interpreted section 510(b) to require proof of acts of sexual intercourse or the right to sexual intercourse. However, while refusing to terminate maintenance, the trial court found that Mr. Montgomery was not the renter that he and Mrs. Sappington claimed he was, and the trial court invited an appeal of his decision.
While I must admit that the presence or absence of sex is certainly relevant and material, I disagree with the majority holding that parties living together on a conjugal basis necessarily includes a sexual relationship between them. I am compelled therefore to consider all three of the appellant’s issues, which are:
(1) Whether the word “conjugal” as used in subsection (b) of section 510 necessarily includes sexual intercourse as classically defined;
(2) Whether an impotent male is capable of a conjugal relationship;
(3) Whether the finding of the trial court that a conjugal relationship did not exist is against the manifest weight of evidence.
I would rule that a conjugal relationship does not necessarily include sexual intercourse; that a male, if impotent, is capable of a conjugal relationship; and that the trial court did err in finding that a conjugal relationship did not exist.
The record reveals that Mrs. Sappington and Mr. Montgomery were older divorced adults without any family obligations, they had met some 12 years before, they attended singles dances subsequent to their divorces on some 20 occasions, they danced together, and ultimately Mr. Montgomery commenced residing in the marital residence acquired by Mrs. Sappington as part of her property settlement when she divorced. Mr. Montgomery took over use of the master bedroom and the two have lived there alone since, that is, for more than two years. Mrs. Sappington testified that she charged Mr. Montgomery $120 per month rent, but that she did not declare this amount as rental income on her income tax returns. Mr. Montgomery testified that there was no formal arrangement but that he paid in cash as necessary whenever bills came in. The record reflects their social activity together was unlimited and that there was no evidence of any intention of terminating the living arrangement. It appears that they did everything together as would a husband and wife, openly, and that in effect Mr. Montgomery replaced Mrs. Sappington’s former husband in and about the household. However, it appears they handled their own limited business affairs separately, and that neither is openly affectionate. (Mrs. Sappington’s daughter verified the latter about her mother.) Mrs. Sappington indicates that she enjoys social activity with female acquaintances outside the home, but both Mr. Montgomery and Mrs. Sappington admit that they do not date or socialize otherwise, except with each other. While admitting that they get along very well, they both testified, in opposition to any living arrangement, sexual relationship inference, that they have never slept in the same bed, even when occupying the same sleeping rooms to and from and while in Florida on vacations.
Though a sexual relationship and affection for each other was denied, every facet of a relationship necessary to circumstantially establish that sexual intercourse occurred was proved. Certainly sleeping in the same house for several years and in the same motel and vacation sleeping rooms necessitates a conclusion of a “conjugal” relationship beyond a mere platonic, pristine cohabitation of friends. (The evidence would be sufficient to prove adultery. See Cuneo v. Cuneo (1980), 80 Ill. App. 3d 141, 399 N.E.2d 1384.)
From this we can conclude that Mrs. Sappington and Mr. Montgomery established an ongoing relationship of “[cohabiting] with [each other] on a resident, continuing *** basis.” And, clearly there has been a substantial change in circumstances from those of Mrs. Sappington at the time of her divorce.
It is axiomatic that “the legislative branch in the exercise of its traditional authority [declares] public policy in the domestic relations field.” (Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 61, 394 N.E.2d 1204, 1209.) Our resolution of the issues therefore turns upon the legislative intent by using the word “conjugal” with “continuing.” The only legislative history of section 510(b) herein involved is that it was passed by the legislature in 1977 and that it parrotted in part section 316(b) of the Uniform Marriage and Divorce Act, which Uniform Act reads:
“(b) Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon [1] the death of either party or [2] the remarriage of the party receiving maintenance.” (Emphasis added.) (9A Uniform Laws Annotated 183 (1979).)
Section 510(b) as then enacted (and section 510(b) at the time the subject petition was filed in October of 1981), however did not include the emphasized introductory clause of the Uniform Act. Obviously it did not include the third terminating event involved in the instant case. The Illinois legislature then chose to mandate the third terminating event by adding: “[0]r if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” Ill. Rev. Stat. 1979, ch. 40, par. 510(b).
Firstly, it should be recognized that the elimination of the introductory clause attained the object of making terminating events mandatory. Secondly, as Justice Stouder in Ihle v. Ihle (1981), 92 Ill. App. 3d 893, 416 N.E.2d 366, and Justice O’Connor in In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 404 N.E.2d 469, have observed, the purpose of the inclusion of the “resident continuing conjugal cohabiting” terminating event was intended to reverse prior law which permitted maintenance payments to continue even though the recipient spouse had entered into a husband-and-wife-like relationship with another. While doing so it should be noted that the legislature did not repeal the statute against contracting common law marriages in Illinois. Nor did the legislature repeal the Illinois law which makes fornication a misdemeanor.
Exactly what did the legislature mean by including the word “conjugal” in section 510(b)? Black’s Law Fourth and Webster’s Third New International Dictionary definitions of “conjugal” are as follows:
“Of or belonging to marriage or the married state; suitable or appropriate to the married state or to married persons; matrimonial; connubial. Swanson v. Swanson, 20 A.2d 617, 618, 128 Conn. 128, 135 A.L.R. 349.” (Black’s Law Dictionary 374 (4th ed. 1951).)
“1: of or relating to marriage, the married state, or married persons in their mutual relations; MATRIMONIAL, CONNUBIAL ***
2: consisting of or based on the husband, wife, and their offspring as constituting the functional familial unit in a society *** contrasted with consanguine, compare FAMILY — con-ju-gali-ty.” (Webster’s Third New International Dictionary 480 (1976).)
Black’s definition of “Conjugal rights” is as follows:
“Matrimonial rights; the right which husband and wife have to each other’s society, comfort, and affection.” Black’s Law Dictionary 374 (4th ed. 1951).
Though I take issue with defining conjugal in the context of “rights,” as does the majority, even Black’s definition of “conjugal rights” limits the rights to a de jure marriage state, and it is also noteworthy that the definition does not include the word “sex,” nor does it include the right to sex. (Certainly there is no right whatsoever to sex outside of a de jure marriage.)
The above-recited modern recognized definitions of “conjugal” obviously assume only the de jure marital state. Our chore is to determine what the legislature meant by “conjugal” in a nonmarital setting for the purpose of adding another mandated automatically enforceable right to terminate maintenance. By adding the word conjugal the legislature meant to define something other than holding out as a husband and wife (as in a common law marriage), or something other than an open and notorious sexual relationship (as fornication). Obviously the legislature meant something less than a de jure marriage, and did not choose to use the term “defacto.”
Dr. Carol Moy, a professor of psychiatry and family practice at Southern Illinois University School of Medicine in Springfield, testified at the trial in this case. She counsels couples who are dissatisfied with their relationships and assists people in developing a conjugal relationship, including males who are impotent. She indicated that penile penetration is not the only form of sexual intercourse, that there are verbal and nonverbal ways of expressing sexuality. While indicating that a conjugal relationship does not necessarily involve sexual intercourse or sexual gratification, she defined a conjugal relationship as “a total family relationship *** between a male and a female [is] usually understood to be a relationship of two people living, functioning together in a mutually supportive atmosphere.”
The case law interpretations of the third terminating event of section 510(b) were commenced in the Illinois Appellate Court in April of 1979. They are:
In re Support of Halford (1979), 70 Ill. App. 3d 609, 388 N.E.2d 1131;
Schoenhard v. Schoenhard (1979), 74 Ill. App. 3d 296, 392 N.E.2d 764;
In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 404 N.E.2d 469;
In re Marriage of McGowan (1980), 84 Ill. App. 3d 609, 405 N.E.2d 1156;
In re Marriage of Olson (1981), 98 Ill. App. 3d 316, 424 N.E.2d 386;
In re Marriage of Cohenour (1981), 101 Ill. App. 3d 362, 428 N.E.2d 195;
In re Marriage of Clark (1983), 111 Ill. App. 3d 960, 444 N.E.2d 1369.
Except for Cohenour all involved short term or non-live-in or admitted sexual relationships. Cohenour is the only factually similar case.
In Cohenour, as here, we found that the maintenance recipient claimed physical impairment and did not seek employment. Like Mr. Montgomery, Mr. Escabedo in Cohenour contributed dollars rather freely to the Cohenour household expenses, and denied sexual activity with Mrs. Cohenour, which was verified by Mrs. Cohenour’s resident son, who was unfriendly to Mr. Escabedo. Mr. Escabedo also indicated that he had his own sleeping accommodation in the house, for a time in a basement room, and thereafter in the room relinquished by Mrs. Cohenour’s son. However, unlike the instant case, it does not appear that Mrs. Cohenour and Escabedo socialized together on an unlimited basis as here, nor did they vacation together. They of course denied any sexual relationship. In approving the trial court’s refusal to terminate maintenance we held that continuing sexual intercourse must be proved as occurring between the parties before the pertinent provision of section 510(b) is triggered, thereby eliminating the obligation to continue maintenance payments. We said “continuing sexual intercourse must occur between the party receiving maintenance and another party.” (In re Marriage of Cohenour (1981), 101 Ill. App. 3d 362, 365, 428 N.E.2d 195, 197.) Then we said “[t]he law requires either direct or circumstantial evidence of sexual conduct before maintenance payments can be terminated.” (101 Ill. App. 3d 362, 365, 428 N.E.2d 195, 198.) One fallacy of our reasoning in Cohenour is apparent. We erroneously equated sexual conduct with sexual intercourse. In addition, the facts presented in the instant case suggests that our ruling in Cohenour was overbroad, and though the proper result was reached, I would now state the applicable principles of law more narrowly. In fact, I believe the intent of the legislature has been misinterpreted by our various appellate decisions cited above. I believe there is no justification for equating sexual intercourse with conjugal, without reservation or exception.
Though sexual activity will normally be an element in a conjugal relationship, it would seem that there could be a conjugal relationship without sexual intercourse. Absence of intercourse in a marriage would not make a marriage nonconjugal. I doubt that the legislature contemplated that the consummation of the sex act was necessary to a conjugal relationship. Sexual intercourse as classically defined is sometimes impossible between partners, which we must assume was recognized by the legislature. Though the element of sex is certainly a factor to be considered, by my view it is not an essential ingredient and should not be a controlling factor. Whether partners avail themselves of the sexual aspect of cohabitation is a private matter in our society. Unless a crime is involved, the sexual activity need not be disclosed, and most times is not. (For that reason such conduct in a setting such as here is no more susceptible to direct, positive evidence than is adultery.) However, in the words of the appellant “like it or not Illinois is relatively straight-laced.” In Illinois when the public is even only indirectly affected the public policy in the domestic relations field is to condemn the activity. As I have heretofore indicated, fornication is a crime when the behavior is open and notorious, common law marriages are barred by statute, in 1977 the Illinois legislature added the additional maintenance terminating event here involved, and our supreme court, through Justice Underwood, while denying a “common law” wife’s claims, which were considered to perhaps be meritorious, said, “There are major public policy questions involved in determining whether, under what circumstances, and to what extent it is desirable to accord some type of legal status to claims arising from such relationships.” (Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 58, 394 N.E.2d 1204, 1207.) Obviously Illinois has a strong public policy in favor of encouraging marriage and regenerating morality, and it appears that the pertinent provision of section 510(b) is consistent with the public policy of Illinois which disfavors the creation of or continuation of rights which enhance nonmarital relationships. Hewitt.
Given what appears to be a rather clearly defined mandate and purpose to terminate future maintenance whenever the receiving spouse enters into a husband-wife-like relationship, and in view of the public policy as expressed by our supreme court and our statutory law, having carefully considered all of the evidence and circumstances, I would rule in favor of terminating maintenance here.
I would hold that when two parties, usually of the opposite sex, who are not closely related, reside together continuously for an extended period of time, pursuing life and functioning together, sharing financial and household responsibilities, in a warm, intimate, mutually supportive atmosphere, tantamount to that of husband and wife, then the relationship is presumed to be “[cohabitation] with another person on a resident, continuing conjugal basis,” whether sexual conduct is evidenced or desired.
Though stare decises would normally compel me to concur, I must dissent and depart from former opinions for the reasons indicated.