Schoessow v. Schoessow

Winslow, J. We suppose that’ the circuit judge failed to make, any findings as to the acts of personal violence which were alleged by plaintiff and denied by defendant, because he deemed the bare fact of refusal to permit sexual intercourse a sufficient .ground for divorce a vinculo. In this we think he was mistaken. That fact alone does not, either in reason or authority, constitute “cruel and inhuman treatment.” No injury to the plaintiff, either mental or bodily, is alleged or proven to have resulted from such refusal; nor is her health claimed to have been impaired. We are not, therefore, called upon to decide what might be the effect had such facts been in the case. 1 Bish. Mar. & Div. (6th ed.), § 738, and cases cited. Nor, under the better authority, does such fact alone constitute “ wilful desertion.” We are satisfied with the discussion of this question in Fritz v. Fritz, 138 Ill. 436, where the authorities are reviewed, and we deem it unnecessary to add anything here. We shall not attempt to decide the disputed question as [555] to cruel and inhuman treatment, upon which the circuit court did not pass. We deem it best that the trial court should - first make findings on this question. The cause will be remanded, with directions to the circuit court to pass upon the issue of cruel and inhuman treatment upon the testimony already taken, with the right to receive and consider further testimony if necessary. The refusal of marital intercourse as ground for divorce is discussed, with a review of the authorities, in a note to Fritt's v. Fritts, 14 L. R. A. 685. — Bep. By the Court.— Judgment reversed, and cause remanded for further proceedings in accordance with this opinion.