{
  "id": 5184367,
  "name": "Helen Gibson Moyer, Plaintiff-Appellee, v. John William Moyer, Defendant-Appellant",
  "name_abbreviation": "Moyer v. Moyer",
  "decision_date": "1958-05-13",
  "docket_number": "Gen. No. 47,246",
  "first_page": "404",
  "last_page": "407",
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
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  "last_updated": "2023-07-14T15:08:03.648155+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "LEWE and MURPHY, JJ., concur."
    ],
    "parties": [
      "Helen Gibson Moyer, Plaintiff-Appellee, v. John William Moyer, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE KILEY\ndelivered the opinion of the court.\nThis is a divorce action with decree for plaintiff on the ground of desertion. Defendant, the husband, has appealed.\nThe parties were married June 26, 1946, in Chicago, Illinois, and have one child eight years of age. In April of 1951 plaintiff obtained a divorce from defendant in Florida. On July 27, 1951, the parties were remarried and lived together until November 30, 1954, on which date plaintiff left defendant, took the child and moved into another apartment. She did this without the consent of, or notice to, defendant.\nOn January 3, 1956, plaintiff was awarded a decree for separate maintenance under which she was given the custody of the child and was awarded child support. The decree found that plaintiff was living separate and apart from defendant \u201cwithout any fault on her part.\u201d Thereafter, on April 26, 1957, plaintiff filed this suit alleging that defendant on November 30, 1954, \u201cwilfully deserted and absented himself from plaintiff, without any reasonable cause, for the space of one year and upward.\u201d\nThe question is whether plaintiff is entitled to a divorce on the grounds of desertion.\nIn Van Dolman v. Van Dolman, 378 Ill. 98, 101-02, the Supreme Court stated that a finding in a decree for separate maintenance that plaintiff was living separate and apart from defendant without any fault on her part is not conclusive in itself since \u201cthis issue may be decided for or against either party without adjudication that a ground for divorce did or did not exist.\u201d However, that court went on to state that \u201cwhen the decree is entered the one at fault is determined, and absence, if wilfully continued thereafter, may be sufficient to commence desertion as a ground of divorce under the statute.\u201d Though the Van Dolman case was not decided on this ground and though we have found no other Illinois case deciding the particular issue before us, we think that if a wilfullness is shown on the part of the defendant-at-fault to continue his refusal to resume normal cohabitation with his spouse, the spouse will thereafter, upon the expiration of the statutory period, have sufficient grounds for divorce for desertion.\nPlaintiff testified that the reason she left defendant was because of his refusal to have sexual relations with her and that this was because of his expressed desire to have plaintiff be not a wife, but only a mother to their child. This was a refusal to carry on normal cohabitation. Such conduct on the part of defendant would not entitle plaintiff to a divorce under the theory of constructive desertion since refusal of sexual intercourse is not in itself desertion. (Fritz v. Fritz, 138 Ill. 436.) However, such conduct would, after a judicial determination that plaintiff is living separate and apart from defendant without fault on her part, give rise to grounds for desertion if defendant wilfully persists in it. (Van Dolman v. Van Dolman, 378 Ill. 98, 103.)\nWe think the testimony in this case shows that defendant wilfully continued, and still continues, to refuse normal cohabitation. He admits that sexual intercourse ceased \u201cfrom at least August of 1953.\u201d His testimony shows that his requests for plaintiff\u2019s return, assuming he made them as he contends, were, and are still, dependent upon plaintiff only being a mother to their child. This amounts to an offer of cohabitation devoid of the normal relationship found between husband and wife.\nDefendant testified that there was only one thing that mattered in this case and that was \u201cthe custody and well-being of our son\u201d; that \u201cthe only person in this case that can be considered is the welfare of our son\u201d; that his offer of a summer cottage for his wife and child\u2019s benefit in 1955 was not intended by him to be an offer for the resumption of marital relations; that, in fact, he has never offered to resume marital relations with his wife; that in answer to a question as to whether he loved his wife he stated, \u201cI respect my wife. She is the mother of my son\u201d; and that in answer to a question as to whether he loved his wife \u201cas if you were living together as husband and wife\u201d he stated, \u201cI love my wife today as much as I ever loved my wife.\u201d A reasonable inference can be drawn from this testimony that defendant openly desired and required that the marriage relationship, if it were resumed be continued under the same conditions which compelled plaintiff to leave him in 1954. It shows a wilfullness on his part not to resume normal cohabitation and justified the chancellor measuring the period of desertion from the date of separation in November, 1954.\nWe conclude that plaintiff was properly granted a divorce on the ground of desertion.\nWe need consider no other points raised. The decree of divorce is affirmed.\nAffirmed.\nLEWE and MURPHY, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE KILEY"
      }
    ],
    "attorneys": [
      "John A. Brown, of Chicago, for defendant-appellant.",
      "No brief filed for appellee."
    ],
    "corrections": "",
    "head_matter": "Helen Gibson Moyer, Plaintiff-Appellee, v. John William Moyer, Defendant-Appellant.\nGen. No. 47,246.\nFirst District, Second Division.\nMay 13, 1958.\nRehearing denied Jnne 3, 1958.\nReleased for publication June 4, 1958.\nJohn A. Brown, of Chicago, for defendant-appellant.\nNo brief filed for appellee."
  },
  "file_name": "0404-01",
  "first_page_order": 414,
  "last_page_order": 417
}