Schoessow v. Schoessow
| Decision Date | 06 December 1892 |
| Parties | SCHOESSOW v. SCHOESSOW. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.
Action by Eliza Schoessow against Joseph Schoessow for divorce. From a judgment granting plaintiff a divorce a vinculo, defendant appeals. Reversed.
The other facts fully appear in the following statement by WINSLOW, J.:
Divorce. Plaintiff brought the action in August, 1891, alleging marriage June 20, 1890, and setting forth two alleged causes of action,--the first for cruel and inhuman treatment, a number of instances being set forth; the second for refusal to cohabit with plaintiff, except on one occasion, about three months after the marriage. The defendant answered, admitting the marriage, denying all allegations of cruelty, denying that he refused to cohabit with plaintiff, and alleging as a counterclaim that plaintiff refused to have sexual intercourse with him, except on one occasion,12 days after the marriage, which refusal he alleged caused him much physical and mental suffering. Both parties prayed for an absolute divorce. On the trial considerable testimony was adduced on both sides in relation to the alleged acts of cruelty claimed by the plaintiff, and both parties testified to refusal to permit intercourse by the other, in accordance with the claims of their pleadings. The court made no findings as to the plaintiff's first cause of action, and only found that the defendant (the husband) was “guilty of cruel and inhuman treatment in that he refused to cohabit with the plaintiff, although being of sufficient ability to do so.” Upon this finding an absolute divorce was adjudged to the plaintiff, and the defendant was adjudged to return certain personal property, and pay plaintiff weekly alimony. From this judgment, defendant appeals.
Sylvester & Scheiber, for appellant.
M. N. Lando, for respondent.
WINSLOW, J., ( after stating the facts.)
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...
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