Croll v. Croll
| Decision Date | 19 February 1929 |
| Docket Number | 6311. |
| Parties | CROLL v. CROLL. |
| Court | West Virginia Supreme Court |
Submitted February 12, 1929.
Syllabus by the Court.
Though denial of sexual intercourse, by one spouse with the other without sufficient reason, does not alone constitute ground for divorce, yet, where such unjustifiable denial of sexual relation is accompanied by unwarranted suspension of substantially all other phases of marital duty, the offending spouse is guilty of legal desertion, though the parties occupy the same house, and the spouse offended against is entitled to a divorce.
Appeal from Circuit Court, Cabell County.
Divorce suit by J. W. Croll against Elizabeth Croll, wherein defendant filed a cross-bill. Decree for plaintiff, and defendant appeals. Affirmed.
E. L Hogsett and David F. Sheets, both of Huntington, for appellant.
H. H Darnall and F. W. Riggs, both of Huntington, for appellee.
On this appeal from a decree of the circuit court of Cabell county affirming a decree of the domestic relations court of that county, we are called upon to determine whether the trial court was warranted in granting to the husband a decree of divorce from bed and board from his wife.
Although these parties occupied the same home until the husband obtained lodging elsewhere on the 12th day of December, 1927 social intercourse between them had practically ceased, and sexual intercourse entirely so. She does not deny that she told her husband, also her surgeon in the presence of a nurse, all three of whom testify to the fact, that she never expected to have sexual intercourse with her husband again. She seeks to justify this attitude on the ground that, since she underwent an abdominal operation in the spring of 1927 her sexual organs have been too contracted to permit of copulation; but the eminent surgeon who performed the operation, and who examined the woman some months thereafter, when the matter was called to his attention by her husband, refutes her position. Testifying about this subsequent examination, he says: "I found her in a normal condition and no excuse why she could not" (meaning why she could not indulge in sexual intercourse). He further testifies that, if there had been an undue contraction following the operation, the condition could have been easily and painlessly repaired, but that she said to him just prior to the examination above mentioned that if she was too close she intended to leave it that way; that she did not care, because she did not expect to have intercourse with her husband any more. Another physician who examined the defendant at her request some months subsequent to the operation is a little doubtful about the situation, and thinks that it would be hard to say whether she could or could not have sexual intercourse without pain or injury to herself. He thinks that her sexual organs are not quite in normal condition. There is also some difference in the evidence of the respective parties as to the extent to which this woman ceased to discharge her other marital duties. She admits that she did not share her husband's room with him for many months prior to the institution of this suit, nor does she deny that she kept her separate room locked both day and night, whether she was therein or not. The husband is a merchant and goes to his place of business each morning between 7 and 7:30. She did...
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