Bramson v. Bramson

• Decision Date: 21 April 1980
• Docket Number: No. 79-771,79-771
• Citation: 39 Ill.Dec. 85,83 Ill.App.3d 657,404 N.E.2d 469
• Parties: , 39 Ill.Dec. 85 In re the Marriage of David BRAMSON, Petitioner-Appellee, v. Suzan BRAMSON, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 469

404 N.E.2d 469

83 Ill.App.3d 657, 39 Ill.Dec. 85

In re the Marriage of David BRAMSON, Petitioner-Appellee, v. Suzan BRAMSON, Respondent-Appellant.

No. 79-771.

Appellate Court of Illinois, First District, First Division.

April 21, 1980.

George B. Collins and Collins & Amos, Chicago, for respondent-appellant.

William J. Harte, Ltd., Chicago, for petitioner-appellee.

O'CONNOR, Justice:

David Bramson, petitioner, sought termination of maintenance payments against his former wife, Suzan Bramson, in the circuit court of Cook County. Following a hearing where Mrs. Bramson was the sole witness, the trial court found her conduct amounted to cohabitation on a resident, continuing conjugal basis under section 510(b) of the Illinois Marriage and Dissolution of Marriage Act ("Marriage Act") (Ill.Rev.Stat.1977, ch. 40, par. 510(b)). The court accordingly granted the petition to terminate Mr. Bramson's future maintenance obligations.

Mrs. Bramson appeals, contending that: (1) the marital settlement agreement, by implication, precluded the trial court from applying section 510(b) of the Marriage Act; (2) the evidence does not show cohabitation on a resident, continuing conjugal basis; (3) Mr. Bramson acquiesced in the conduct of Mrs. Bramson and is estopped from seeking termination of maintenance; and (4) section 510(b) of the Marriage Act, as applied, is an unconstitutional infringement upon the marital settlement agreement and impairs the right to contract.

Mr. and Mrs. Bramson were married on February 7, 1963. They have three children, aged nine, seven and four. On January 16, 1974, the Bramsons were divorced. Incorporated into the divorce decree was a marital settlement agreement dated and signed by the parties on December 18, 1973. The agreement provided, among other things, that Mr. and Mrs. Bramson were to have joint custody of the children. The children were to reside permanently in the former marital home and the parents were to alternate residence with the children annually. Mr. Bramson was to pay the expenses of the marital home. Mrs. Bramson was to provide an apartment where the "off year" parent would live while the "on year" parent stayed with the children in the marital home. Visitation rights of the "off year" parent were to be liberal, frequent and by arrangement.

Whether the children were in the physical custody of Mr. or Mrs. Bramson, Mr. Bramson was to pay all monies he had customarily paid prior to the divorce for the children's support and maintenance. Mr. Bramson also was to pay Mrs. Bramson $11,000 per year maintenance. According to the agreement, these payments continued on monthly installments until either: (a) the remarriage of Mrs. Bramson, (b) the death of Mrs. Bramson, or (c) in the event of Mr. Bramson's death, the first payment to Mrs. Bramson from an insurance trust.

The agreement further provided that in the event of remarriage, any necessary adjustment would be made "consistent with the intents, methods and purposes of this agreement."

When Mr. Bramson remarried, he and his wife no longer intended to occupy the "off year" apartment. According to Mrs. Bramson, during the summer of 1977 she talked to Mr. Bramson about moving into Jack Galprin's apartment for a temporary period of time; he said fine, go ahead. At the time of their divorce, they had also discussed living with people and decided this would be acceptable so long as the children knew the other party.

In September 1977, Mrs. Bramson moved from the "off year" apartment to the residence of Jack Galprin. She was residing there on October 1, 1977, when the new Marriage Act went into effect. In January 1978, upon receiving service of Mr. Bramson's petition to terminate maintenance, Mrs. Bramson moved to the apartment of a female friend.

Mrs. Bramson testified that while she lived with Galprin they shared the same bed. Galprin would also sleep over from time to time while she lived at the marital home during August 1977. After moving out of Galprin's apartment, Mrs. Bramson returned to stay overnight about twenty times. They also have taken trips together. However, both she and Galprin dated other people.

Mrs. Bramson shared expenses with Galprin; she paid for most of the food, shared the expense of a housekeeper, paid $100 to $150 per month for housing and paid a plumbing bill when she caused some damage. With the exception of holiday gifts, she bought her own clothes. Bramson considered herself to be sharing expenses as would any roommate. She did most of the cooking and Galprin handled most repairs.

When the children visited their mother at Galprin's apartment, she provided their food, bus tokens and paid entertainment expenses. Bramson moved in with Galprin, in part, because his home was large enough for comfortable visitation with the children.

Mrs. Bramson put her own name on Galprin's door and never went by or used the name Mrs. Galprin. Her voter's registration listed the marital home as her address. Other identification listed other addresses. In accordance with the settlement agreement, Mrs. Bramson intended to return to the marital home on August 15, 1978. She testified that her residence with Galprin was designed to be temporary.

Based on this evidence and the briefs and arguments of the parties, the trial court ruled from the bench that:

"The question was, whether a woman who lives with another man not her husband can still get alimony from her present husband. I believe that is the legal question.

"And it was testified, the husband had paid alimony during this period. I believe the new statute is designed to protect such a husband. Once you live with a man, you have voided your chance to get alimony. I have so ruled.

"My ruling is that she no longer has a right to alimony from this man. You can't live with somebody else and expect a husband to take care of you."

The written, final order provides, in part:

" * * * (T)he law in Illinois is that where a woman lives with another man, not her husband, she is no longer entitled to alimony and her right to alimony is thereby terminated."

On appeal, Mrs. Bramson first contends that the terms of the 1973 settlement agreement solely governed termination of maintenance, thus precluding application of section 510(b) of the Marriage Act. The settlement agreement provided for termination of maintenance payments if either Mrs. Bramson died or remarried or if Mr. Bramson died and Mrs. Bramson received payment from his insurance trust.

The agreement further provided that the parties waived all property rights and claims by reason of the marital relationship whether then existing or arising under future laws. Although not clearly articulated in her brief, we construe Mrs. Bramson's argument to be that the parties waived the right to terminate maintenance except as provided in the agreement and thus waived application of section 510(b).

Section 510(b) provides:

"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 cohabits with another person on a resident, continuing conjugal basis." (Ill.Rev.Stat.1977, ch. 40, sec. 510(b).)

This provision is drawn in part from section 316(b) of the Uniform Marriage and Dissolution of Marriage Act (9 U.L.A. § 316(b), at 500 (1973)), which reads:

"Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance." (Emphasis added.)

The omission from the Illinois Act of the preamble clause contained in the Uniform Act indicates that the terminating events contained in section 510(b) are mandatory. Neither the parties pursuant to agreement nor the courts can avoid the statute's directive. See Duvall v. Duvall (1972), 8 Ill.App.3d 53, 289 N.E.2d 59 (by incorporating settlement agreement in the decree, the court does not divest itself of the power to modify); cf. Fawkes v. Fawkes (1977), 115 Ariz.App. 384, 565 P.2d 890 (wife's fixed, non-modifiable maintenance for one year ceased on her remarriage by operation of statute); Fye v. Zigoures (1977), 114 Ariz.App. 579, 562 P.2d 1077 (non-modifiable maintenance award to wife terminated on her death notwithstanding parties' agreement to the contrary).

Accordingly, the provision of the new Marriage Act applies regardless of the settlement agreement. We turn, then, to the crux of this case: whether the evidence supports the trial court's finding that maintenance terminate.

The requirement that maintenance terminate upon the recipient's residing with another person on a resident, continuing conjugal basis presumably was added to the Marriage Act to avoid the injustice of Atwater v. Atwater (1974), 18 Ill.App.3d 202, 309 N.E.2d 632. There, a former wife who had been living in a common law marriage arrangement was held entitled to receive alimony because she had not actually remarried. Since Illinois does not recognize common law marriages (Wilson v. Cook (1912), 256 Ill. 460, 100 N.E. 222; Ill.Rev.Stat.1977, ch. 40, par. 214), the court had no alternative save to confirm her entitlement to alimony.

Two appellate courts have interpreted section 510(b) to date: Schoenhard v. Schoenhard (2d Dist., 1979), 74 Ill.App.3d 296, 30 Ill.Dec. 109, 392 N.E.2d 764, and In re Support of Halford (5th Dist., 1979), 70 Ill.App.3d 609, 27 Ill.Dec. 168, 388 N.E.2d 1131.

In Halford, the evidence showed that Wayne Green lived with Mrs. Halford for over three...